FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 19, 2014 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

WILDEARTH GUARDIANS,

Plaintiff - Appellant,

No. 13-2001 v. (D.C. No. 1:12-CV-00118-LFG-KBM) (D. New Mexico) 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.

ORDER AND JUDGMENT *

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.

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 Endangered Species Act, 16 U.S.C.

§ 1538(a) (2006); 50 C.F.R. § 17.84(k) (2011). In the complaint, WildEarth

alleged that trappers improperly killed or injured Mexican gray wolves, which are

* This order and judgment does not constitute precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. 10th Cir. R. 32.1(A).

0 protected by statute and regulation. WildEarth faulted the Chairman for the

trappings, claiming that he had failed to enact regulations to protect the wolves.

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.

3 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). The injury is

redressable only if there is a substantial likelihood that the requested relief would

provide redress. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir.

2005). The Plaintiff, as the party invoking federal jurisdiction, bears the burden

of establishing redressability. See N. Laramie Range Alliance v. FERC, 733 F.3d 1030, 1034 (10th Cir. 2013).

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

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.”).

Entered for the Court

Per Curiam

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