Articles Posted in Zoning, Planning & Land Use

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A Settlement Agreement sought to end a longstanding, complex dispute dating from 2008. In 2008, environmental groups led by the Southern Utah Wilderness Alliance (collectively, “SUWA”) challenged six resource management plans (“RMPs”) and associated travel management plans (“TMPs”) adopted by the United States Bureau of Land Management (“BLM”). Six other parties intervened as respondents, including the State of Utah and several counties in Utah (collectively, “Utah”). When BLM, SUWA, and multiple intervenors entered into a settlement and sought to dismiss the case in January 2017, Utah challenged the settlement. Utah contended, among other arguments, that the Settlement Agreement illegally codified interpretative BLM guidance into substantive rules, impermissibly binds the BLM to a past Administration’s policies, infringes valid federal land rights (known as “R.S. 2477 rights”), and violated a prior BLM settlement. The district court disagreed and approved the Settlement Agreement. On appeal to the Tenth Circuit, Utah sought to reverse the district court for primarily the same issues raised at trial. The Tenth Circuit concluded it lacked jurisdiction over the claims and dismissed. View "Southern Utah Wilderness v. Burke" on Justia Law

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The issue at the center of this decades-long water rights case involved the Pojoaque Basin of New Mexico. A settlement was reached among many of the parties involved. The district court overruled the objectors and entered a final judgment. The objecting parties appealed, arguing the settlement was contrary to law because it altered the state-law priority system, and the New Mexico Attorney General could not agree to enforce the settlement without the state legislature's approval. The Tenth Circuit Court of Appeals determined, as provided in the agreement, the State Engineer promulgated rules for the administration of water rights in the Basin. Those rules explicitly provided that non-settling parties “have the same rights and benefits that would be available without the settlement agreement” and that those rights “shall only be curtailed . . . to the extent such curtailment would occur without the settlement agreement.” However, though the settlement preserved their rights, it did not confer the objector-appellants standing to challenge it. Accordingly, the Court reversed and remanded the case for dismissal of the objections for lack of subject matter jurisdiction. View "New Mexico v. Aamodt" on Justia Law

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Alabama-Quassarte Tribal Town (“AQTT”) appeals several orders entered in favor of the United States, the Secretary and Associate Deputy Secretary of the U.S. Department of the Interior (“DOI”), the Secretary of the U.S. Department of the Treasury, and the Muscogee (Creek) Nation (the “Creek Nation”). AQTT was a federally recognized Indian Tribe organized under the Oklahoma Indian Welfare Act (“OIWA”). AQTT filed a complaint against the United States and several federal officials (collectively, the “Federal Defendants”) alleging property known as the Wetumka Project lands were purchased under OIWA for the benefit of AQTT. It requested a declaratory judgment and an order compelling the government to assign the Wetumka Project lands to AQTT and provide AQTT with a full and complete accounting of related trust funds and assets. On the Federal Defendants’ motion for judgment on the pleadings, the district court dismissed AQTT’s claim for land assignment and denied the motion as to an accounting of trust assets. The parties then promptly filed cross-motions for summary judgment. All were denied. The case was remanded to the Interior Board of Indian Appeals (“IBIA”) for further development of the trust accounting issue. After the IBIA decided that the government did not hold any funds in trust for AQTT, the case returned to district court. AQTT filed an amended complaint, adding the Creek Nation as a defendant and arguing that the IBIA’s decision was arbitrary and capricious. The Creek Nation moved to dismiss, and that motion was granted on sovereign immunity grounds. In the amended complaint, AQTT also attempted to revive its land assignment claim based on newly discovered evidence. The district court again dismissed the claim. AQTT and the Federal Defendants then renewed their crossmotions for summary judgment. The district court upheld the IBIA’s decision. In granting the government’s motion for partial judgment on the pleadings, the district court dismissed AQTT’s claims for assignment of the Wetumka Project lands for failure to join the Creek Nation, an indispensable party because the IBIA determined the Creek Nation, not AQTT, was the legal beneficiary of the funds related to the Wetumka Project lands. In affirming the district court, the Tenth Circuit concluded the IBIA’s determination was supported by substantial evidence and was not arbitrary or capricious: the deeds of conveyance for the Wetumka Project lands plainly placed the land in trust for the Creek Nation, and did not create a vested beneficial interest in any other entity. View "Alabama-Quassarte Tribal Town v. United States" on Justia Law

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The United States Bureau of Land Management leased 2,500 acres of geothermal mineral rights in Hidalgo County, New Mexico to Plaintiff Lightning Dock Geothermal HI-01, LLC (LDG), a Delaware company. LDG developed and owned a geothermal power generating project in Hidalgo County. LDG also developed a geothermal well field on the subject tract as part of its project. Defendant AmeriCulture, a New Mexico corporation under the direction of Defendant Damon Seawright, a New Mexico resident, later purchased a surface estate of approximately fifteen acres overlying LDG’s mineral lease, ostensibly to develop and operate a tilapia fish farm. Because AmeriCulture wished to utilize LDG’s geothermal resources for its farm, AmeriCulture and LDG (more accurately its predecessor) entered into a Joint Facility Operating Agreement (JFOA). The purpose of the JFOA, from LDG’s perspective, was to allow AmeriCulture to utilize some of the land’s geothermal resources without interfering or competing with LDG’s development of its federal lease. Plaintiff Los Lobos Renewable Power LLC (LLRP), also a Delaware company, was the sole member of LDG and a third-party beneficiary of the JFOA. The parties eventually began to quarrel over their contractual rights and obligations. Invoking federal diversity jurisdiction, Plaintiffs LDG and LLRP sued Defendants Americulture and Seawright in federal court for alleged infractions of New Mexico state law. AmeriCulture filed a special motion to dismiss the suit under New Mexico’s anti-SLAPP statute. The district court, however, refused to consider that motion, holding the statute authorizing it inapplicable in federal court. After review of the briefs, the Tenth Circuit Court of Appeals agreed and affirmed. View "Los Lobos Renewable Power v. Americulture" on Justia Law

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The United States Bureau of Land Management leased 2,500 acres of geothermal mineral rights in Hidalgo County, New Mexico to Plaintiff Lightning Dock Geothermal HI-01, LLC (LDG), a Delaware company. LDG developed and owned a geothermal power generating project in Hidalgo County. LDG also developed a geothermal well field on the subject tract as part of its project. Defendant AmeriCulture, a New Mexico corporation under the direction of Defendant Damon Seawright, a New Mexico resident, later purchased a surface estate of approximately fifteen acres overlying LDG’s mineral lease, ostensibly to develop and operate a tilapia fish farm. Because AmeriCulture wished to utilize LDG’s geothermal resources for its farm, AmeriCulture and LDG (more accurately its predecessor) entered into a Joint Facility Operating Agreement (JFOA). The purpose of the JFOA, from LDG’s perspective, was to allow AmeriCulture to utilize some of the land’s geothermal resources without interfering or competing with LDG’s development of its federal lease. Plaintiff Los Lobos Renewable Power LLC (LLRP), also a Delaware company, was the sole member of LDG and a third-party beneficiary of the JFOA. The parties eventually began to quarrel over their contractual rights and obligations. Invoking federal diversity jurisdiction, Plaintiffs LDG and LLRP sued Defendants Americulture and Seawright in federal court for alleged infractions of New Mexico state law. AmeriCulture filed a special motion to dismiss the suit under New Mexico’s anti-SLAPP statute. The district court, however, refused to consider that motion, holding the statute authorizing it inapplicable in federal court. After review of the briefs, the Tenth Circuit Court of Appeals agreed and affirmed. View "Los Lobos Renewable Power v. Americulture" on Justia Law

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NDSC Industrial Park, LLC (“NDSC”) appealed a district court order dismissing its “Consent Decree Order Motion.” In the late 1990s, the United States and the State of Colorado each filed complaints against Colorado & Eastern Railroad Company (“C & E”) under CERCLA. These complaints sought reimbursement of response costs associated “with the release or threatened release of hazardous substances at the Sand Creek Industrial Site located in Commerce City and Denver, Colorado.” In an effort to avoid protracted litigation, the parties entered into a partial consent decree (the “Consent Decree”) on April 13, 1999. Pursuant to the Consent Decree, C & E agreed to sell two parcels of land, the OU3/6 Property and the OU1/5 Property (collectively the “Properties”), and pay the net proceeds of the sales to the United States and Colorado. In 2002, the remediated OU1/5 and OU3/6 Properties were put up for auction by the United States pursuant to the Consent Decree. NDSC was the winning bidder. Prior to closing on the purchase of the Properties, NDSC was made aware that C & E had already conveyed its fee interest in a right-of-way. In 2014, NDSC filed suit in Colorado state court to quiet title to the railroad right-of-way against C & E, and other interested parties in the Properties. The district court dismissed the motion because NDSC lacked standing to enforce the terms of the consent decree. On appeal, NDSC claimed the district court erred in concluding it: (1) was attempting to enforce the consent decree, as opposed to seeking a limited declaration regarding the meaning of the consent decree; and (2) did not have standing to seek a declaration that a conveyance of property violated the terms of the consent decree. Finding no reversible error in the district court’s dismissal, the Tenth Circuit affirmed. View "United States v. Colorado & Eastern Railroad Co" on Justia Law

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Plaintiff-Appellee Western Energy Alliance (“WEA”) filed this lawsuit against two Defendants: the Secretary of the United States Department of the Interior, and the Bureau of Land Management (the “BLM”). WEA alleged that the BLM violated the Mineral Leasing Act, 30 U.S.C. secs. 181-287 (the “MLA”), by holding too few oil and gas lease sales. Several environmental advocacy groups moved to intervene in the suit: The Wilderness Society, Wyoming Outdoor Council, Southern Utah Wilderness Society, San Juan Citizens Alliance, Great Old Broads For Wilderness, Sierra Club, WildEarth Guardians, Center For Biological Diversity, and Earthworks (collectively, the “conservation groups”). The district court denied the motion to intervene. The court concluded that the conservation groups had failed to show that the pending litigation has the potential to harm their environmental interests, or that the presently named parties could not adequately represent their interests. The conservation groups filed this interlocutory appeal over the denial of their motion to intervene. After review, the Tenth Circuit concluded the conservation groups could intervene in the lawsuit as a matter of right, and reversed the district court’s previous denial. View "Western Energy Alliance v. Zinke" on Justia Law

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Defendant Rural Water District No. 4, Douglas County, Kansas (“Douglas-4”) appealed a district court’s order granting summary judgment in favor of Plaintiff City of Eudora, Kansas (“Eudora”) in this declaratory judgment action. Douglas-4 and Eudora disputed which entity could provide water service to certain areas near Eudora (the “Service Area”). In 2002, Douglas-4 was the water service provider for the Service Area, but was running low on water. Douglas-4 decided to purchase water from an adjacent rural water district, “Johnson-6.” The project required laying new pipes and building additional pumping stations at an estimated cost of $1.25 million. To finance the project, Douglas-4 received initial approval for a $1.25 million loan from the Kansas Department of Health and Environment (KDHE) with a fixed rate and twenty-year term. That same year, Eudora annexed the Service Area. The annexation positioned Eudora to potentially assume Douglas-4’s water customers. Understanding that it was facing a potential loss of customers, Douglas-4’s governing board reduced its KDHE loan to $1 million and sought the remaining $250,000 from a private, USDA-guaranteed loan. Douglas-4 believed that such a loan would come with federal protection under 7 U.S.C. 1926(b), which prevented municipalities from assuming water customers while a USDA-guaranteed loan was in repayment. Douglas-4 eventually secured a USDA-guaranteed loan for $250,000 from First State Bank & Trust and proceeded with the Johnson-6 project. Both the KDHE loan and the USDA-guaranteed loan had twenty-year repayment terms, beginning in 2004 and ending in 2024. Between 2004 and 2007, Douglas-4 and Eudora entered into negotiations in an attempt to resolve the disputed Service Area, but the discussions were not successful. Douglas-4 filed suit in the United States District Court for the District of Kansas to prevent Eudora from taking its water customers. The jury returned a special verdict in favor of Douglas-4, concluding the loan guaranteed by the federal government was necessary, and Eudora appealed. Finding no reversible error in the district court's judgment, the Tenth Circuit affirmed. View "City of Eudora v. Rural Water District No. 4" on Justia Law

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The Bureau of Land Management (“BLM”) closed an area of Recapture Canyon to all-terrain vehicles (“ATVs”) in 2007, to prevent soil damage and the spoliation of archeological resources near the trail. Frustrated with what had been billed as a temporary closure, in 2014, certain individuals planned an ATV ride to protest the BLM’s closure order. The ride took place in May 2014. Defendant-appellant Phil Lyman, a County Commissioner for San Juan County, was a major promoter of the ride. He was charged along with Defendant-appellant Monte Wells in a misdemeanor criminal information with operating ATVs on lands closed to such use by the BLM and conspiring to do so. A jury found both men guilty of the charged offenses, for which they were sentenced them to terms of probation and brief terms of imprisonment. They were also ordered to pay restitution for the costs of assessing and repairing the damage that the protest ride caused to the land. On appeal, defendants brought a variety of challenges to their convictions and the restitution order: asking ask for a new trial because they claimed a reasonable observer allegedly would have questioned the district court judge’s impartiality (the judge did ultimately recuse before their sentencing). Furthermore, they appealed the denial of their motions to dismiss; they made a “Brady” claim stemming from the government’s failure to produce a map showing a possible public right-of-way through Recapture Canyon (which allegedly would have called into question whether the BLM’s 2007 closure order was lawful); they challenged the district court’s restitution order and the amount they were ordered to pay; and, lastly, Lyman argued he was denied constitutionally adequate counsel. The Tenth Circuit found none of defendants’ arguments were grounds for reversal of the district court’s judgment, and affirmed. View "United States v. Wells" on Justia Law

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This case presented a question of whether a large-scale excavation project constituted “mining” under the pertinent federal regulations that address mineral development on Indian land. When an entity engages in “mining” of minerals owned by the Osage Nation, a federally approved lease must be obtained from the tribe. The Osage Mineral Council (OMC), acting on behalf of the Osage Nation, appealed the award of summary judgment to Defendant Osage Wind, LLC (Osage Wind), arguing that Osage Wind engaged in “mining” without procuring a federally approved mineral lease. The Bureau of Indian Affairs (BIA) has defined “mining” as the “science, technique, and business of mineral development[.]” The Tenth Circuit held the term “mineral development” had a broad meaning, including commercial mineral extractions and offsite relocations, but also encompass action upon the extracted minerals for the purpose of exploiting the minerals themselves on site. The Court held Osage Wind’s extraction, sorting, crushing, and use of minerals as part of its excavation work constituted “mineral development,” thereby requiring a federally approved lease which Osage Wind failed to obtain. Accordingly, the Court reversed the award of summary judgment and remanded for further proceedings. View "United States v. Osage Wind" on Justia Law