                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                       UNITED STATES COURT OF APPEALS January 7, 2008
                                                                Elisabeth A. Shumaker
                                       TENTH CIRCUIT                Clerk of Court



 NORBERT A. SCHUELLER,

           Plaintiff - Appellant,
                                                         No. 07-2149
 v.                                                 (D.C. No. CIV-06-659)
                                                           (D.N.M.)
 GARY KING, Attorney General of
 New Mexico; DANIEL
 MANZANARES, Director of New
 Mexico Livestock Board,

           Defendants - Appellees.

 ----------------------------

 MIKE MAJOR & TIM REED,
 individually and d/b/a Major Cattle
 Co.,

           Real Parties in Interest.


                                ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges. **


       *
        This order and judgment is not binding precedent, except under the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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Plaintiff-Appellant Norbert A. Schueller, appearing pro se, challenges the

district court’s final order dismissing his equal protection claim with prejudice for

failure to state a claim and his remaining claims, including his takings and due

process claims, without prejudice for lack of subject matter jurisdiction. R. Doc.

25. Our jurisdiction arises under 28 U.S.C. § 1291.

      The parties are familiar with the facts and we need not repeat them here,

other than to say that Plaintiff alleges he is an owner of an unfenced plot of land

and that trespassing livestock owned by Mike Major and Tim Reed damaged his

land. He filed this civil action against state officials seeking a declaratory

judgment that certain New Mexico statutes which may limit recovery of damages

caused by trespassing livestock (when property is unfenced) violated the Fifth and

Fourteenth Amendments. Plaintiff also sought injunctive relief, and

compensatory and punitive damages were he successful in his declaratory

judgment action. The district court determined that takings and due process

claims were not ripe, and that the livestock fencing statutes at issue had a rational

basis. R. Doc. 24 at 8-10, 12-13.

      On appeal, he contends that the district court’s decision (1) violates

longstanding Constitutional principles of property ownership, (2) continues the

practice of giving third parties greater rights in his property than he has in

violation of the Fifth and Fourteenth Amendments, (3) overlooks the


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responsibility of federal courts to adjudicate federal constitutional questions. We

review the district court’s determination on these matters de novo. Colo. Envtl.

Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). We have reviewed

plaintiff’s brief, 1 the record, and the applicable law and affirm the district court’s

final order for substantially the reasons contained in its memorandum opinion and

order dated February 28, 2007. R. Doc. 24.

      AFFIRMED.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      1
          Defendants have chosen not to submit a brief in opposition to plaintiff’s
appeal.

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