Recognizing a circuit split in which the First Circuit has not weighed in, a Massachusetts district court held that the Younger abstention doctrine does not apply to a claim by foster care children regarding systemic deficiencies in the foster care system.
The en banc Tenth Circuit, in a divided opinion, assumed without deciding that the Supremacy Clause provides a cause of action for a preemption claim. The majority held that the environmental group bringing the suit did not have prudential standing, and therefore dismissed the claim. Three judges concurred in the judgment, expressing skepticism about the cause of action for the preemption claim and finding that the claim was moot. The two judges from the majority of the original panel decision dissented. The Wilderness Society v. Kane, __ F.3d __, 2011 WL 79487, No. 08-4090 (10th Cir. Jan. 11, 2011). Earthjustice represents the Wilderness Society.
The federal Bureau of Land Management (BLM) closed many roads to all-terrain vehicles, such as snowmobiles, in the Grand Staircase-Escalante National Monument. Kane County, Utah, asserted that it had a right of way to these roads, and wrote a letter of protest to BLM. BLM would not remove its signs which stated that the roads were closed to all-terrain vehicles. Kane County took down the BLM signs and posted its own signs stating that the roads were open to these vehicles. The county then passed an ordinance declaring that the roads were open to such use. The Wilderness Society sued Kane County, alleging that its members’ interests had been harmed by the ordinance which conflicted with the Federal Land Policy and Management Act (FLPMA). The Wilderness Society prevailed in district court, and the county took down its signs and repealed its ordinance. A Tenth Circuit panel affirmed, with one judge dissenting. The en banc Tenth Circuit reversed.
The en banc majority acknowledged Tenth Circuit panel decisions, as well as cases from other circuits, holding that a statutory cause of action is not needed for a preemption claim. The court declined to address that issue, stating: “For purposes of today’s holding, we as an en banc court can simply assume without deciding that the Supremacy Clause provides a cause of action.”
The case was dismissed for a lack of prudential standing. The majority found that the claim in essence asserted the rights of the federal government, and the environmental group did not have standing to assert the government’s claim. The court reasoned that the preemption claims were based on the county’s assertion of a right of way being invalid. But only the federal government could assert that its property rights were violated by the county’s alleged right of way. The court stated: “Its protests notwithstanding, TWS obviously seeks to enforce the federal government’s property rights in the disputed rights of way. Its claims turn on the superiority of the federal government’s property claim.” The majority concluded that the Wilderness Society did not have standing to assert the superiority of the federal government’s property claim.
Three judges concurred, not seeing the need to resolve the prudential standing issue. The concurrence followed the majority in assuming, without deciding, that the Supremacy Clause provides a right of action to challenge “state policies and practices as well as laws.” But the concurrence noted that the Supreme Court had addressed jurisdiction, not a right of action. And the concurrence raised concerns about encroaching on Congress’ legislative powers by implying rights of action, citing Alexander v. Sandoval, 532 U.S. 275 (2001), which addressed the absence of a statutory right of action.
Because the county had rescinded its ordinance, the concurrence viewed that part of the case as moot. In regard to the county’s removal of signs and posting its own signs, the concurrence viewed this as a potential conflict between the FLPMA and the federal statute permitting local governments to assert a right of way. Since the conflict was between two federal laws, in the eyes of the concurrence, there was no preemption issue.
In an “emphatic dissent,” the two judges of the original panel decision disputed all aspects of the majority’s decision, including the facts. The dissent states: “This is not a property-rights case, and the district court properly recognized that the United States’ property rights were never placed at issue.” The dissent explained: “Contrary to the majority’s assertion, neither plaintiffs’ injury nor their right to sue under the Supremacy Clause belongs to the United States.” The dissenters also believed that the county would reenact the ordinance, if not constrained by litigation, and therefore disagreed with the concurrence regarding mootness.