                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                June 2, 2009
                   UNITED STATES COURT OF APPEALS
                                                            Elisabeth A. Shumaker
                                   TENTH CIRCUIT                Clerk of Court



 SAVE OUR SNOWPLANES,

            Plaintiff–Appellant,

   v.

 KEN SALAZAR, in his official
 capacity as Secretary, United States
 Department of Interior; UNITED
 STATES DEPARTMENT OF THE
 INTERIOR; DANIEL N. WENK, in                        No. 07-8055
 his official capacity as Director,           (D.C. No. 05-CV-100-WFD)
 National Park Service; MICHAEL D.                    (D. Wyo.)
 SNYDER, in his official capacity as
 National Park Service Regional
 Director, Intermountain Region; and
 MARY GIBSON SCOTT, in her
 official capacity as Superintendent,
 John D. Rockefeller Jr. Memorial
 Parkway and Grand Teton
 National Park Superintendent, *

            Defendants–Appellees.




        *
       Pursuant to Fed. R. App. P. 43(c)(2), Ken Salazar is substituted for Dirk
Kempthorne, Daniel N. Wenk is substituted for Fran P. Mainella, and Michael D.
Snyder is substituted for Steven P. Martin.
                           ORDER AND JUDGMENT **


Before HENRY, Chief Circuit Judge, BRISCOE, and LUCERO, Circuit Judges.


      Save Our Snowplanes, a group of snowplane enthusiasts, challenged a

National Park Service (“NPS”) winter use rule eliminating snowplanes in Grand

Teton National Park. It alleged violations of both the Administrative Procedure

Act (“APA”) and National Environmental Policy Act (“NEPA”). But we cannot

redress Save Our Snowplanes’ alleged injury because the complaint challenged a

winter use rule not in effect when the case commenced. Accordingly, we

conclude that Save Our Snowplanes lacks standing. Exercising jurisdiction under

28 U.S.C. § 1291, we vacate the judgment of the district court and remand the

case with directions to dismiss for lack of jurisdiction.

                                          I

      Save Our Snowplanes is an unincorporated group of snowplane enthusiasts

who use snowplanes for travel to and ice fishing on Jackson Lake Reservoir in

Grand Teton National Park. Snowplanes, despite their deceptive name, do not

fly; they travel on mounted skis and are driven by a pusher-propeller. According

to Save Our Snowplanes, snowplanes were the primary means of winter


      **
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.

                                         -2-
transportation in the Jackson Hole Valley and Yellowstone National Park before

snowmobiles were invented.

      In 2001, NPS promulgated a rule regarding winter use activities in Grand

Teton National Park prohibiting snowplane use on Jackson Lake beginning at the

end of the 2001–2002 winter use season. Special Regulations, Areas of the

National Park System, 66 Fed. Reg. 7260, 7267-68 (Jan. 22, 2001) [hereinafter

2001 Rule]. 1 The 2001 Rule also restricted snowmobile use. Id. Shortly before

the 2001 Rule went into effect, International Snowmobile Manufacturers

Association filed a lawsuit in the United States District Court for the District of

Wyoming challenging the process leading to the adoption of the snowmobile

restrictions. In 2001, the parties in that case reached a settlement in which NPS

agreed to prepare a Supplemental Environmental Impact Statement

(“Supplemental EIS”) to “consider new information and data submitted regarding

new snowmobile technologies.” In 2002, as NPS worked to prepare the

Supplemental EIS, it delayed implementation of the snowmobile restrictions but

      1
          The 2001 Rule, in relevant part, provides:

      A winter use season is that portion of the winter months that begins
      each year in approximately late November, through the following year
      ending in approximately the middle of March. Specific dates are
      dependent on weather conditions and the availability of park facilities
      and resources and may be adjusted at the discretion of the
      Superintendent. Appropriate notice will be given to the public of
      determined start and ending dates each season.

66 Fed. Reg. at 7267-68.

                                         -3-
did not delay the snowplane ban. Special Regulations; Areas of the National Park

System, 67 Fed. Reg. 69,473, 69,476-77 (Nov. 18, 2002) [hereinafter Delay

Rule].

         Approximately a year after the Delay Rule was promulgated, it was

replaced by the 2003 Rule. Special Regulations; Areas of the National Park

System, 68 Fed. Reg. 69,268, 69,268 (Dec. 11, 2003) [hereinafter 2003 Rule].

The 2003 Rule continued to ban snowplane use in Grand Teton National Park but

allowed snowmobiling with restrictions. Id. at 69,289. Complying with the 2001

settlement agreement, NPS published a Supplemental EIS with the 2003 Rule that

“incorporated any significant new or additional information or data submitted

with respect to a winter use plan.” Id. (quotation omitted). “The [Supplemental

EIS] did not include re-evaluating the decision to ban snowplane use on Jackson

Lake because this had not been an issue in the [District of Wyoming] lawsuit, and

was not an aspect of the resulting settlement.” Id. at 69,268.

         Also in 2003, a separate lawsuit was filed in the United States District

Court for the District of Columbia challenging the 2003 Rule for continuing to

permit snowmobiling in several national parks, including Grand Teton, albeit

subject to certain conditions. Fund for Animals v. Norton, 294 F. Supp. 2d 92,

96-97 (D.D.C. 2003). In Fund for Animals, the District of Columbia court

vacated the 2003 Rule, ordering the 2001 Rule as modified by the Delay Rule to




                                           -4-
remain in effect. Id. at 115; see 67 Fed. Reg. at 69,473 (Delay Rule); 66 Fed.

Reg. at 7268 (2001 Rule).

      Because the District of Columbia court ordered the 2001 Rule to remain in

effect, the Wyoming court reopened the previously-settled challenge to the

snowmobile restrictions in the 2001 Rule. Order Reopening Case, Int’l

Snowmobile Mfrs. Ass’n v. Norton, No. 00-CV-229-B, at 2 (D. Wyo. Dec. 31,

2003). In February 2004, the Wyoming court preliminarily enjoined NPS from

enforcing the 2001 Rule and required NPS to promulgate temporary rules for the

2003-2004 winter use season. Int’l Snowmobile Mfrs. Ass’n v. Norton, 304 F.

Supp. 2d 1278, 1294 (D. Wyo. 2004) (“International Snowmobile I”). In

response, NPS promulgated a Compendium Amendment allowing snowmobiling

under certain conditions. Consistent with past practice and in the absence of any

challenge, the Compendium Amendment maintained the snowplane use ban in

Grand Teton National Park. In October 2004, the Wyoming court decided the

merits of the challenge to snowmobile restrictions in the 2001 Rule, concluding

that “NPS violated both NEPA and the APA in its rush to push through the

politically predetermined ban on snowmobiles in the Parks.” Int’l Snowmobile

Mfrs. Ass’n v. Norton, 340 F. Supp. 2d 1249, 1266 (D. Wyo. 2004)

(“International Snowmobile II”). Accordingly, it vacated the 2001 Rule. Id. The

court in International Snowmobile II did not address the validity of the snowplane




                                        -5-
ban, which, despite the panoply of challenges to the prior winter use rules,

remained uncontested.

      Following vacatur of the 2001 Rule in International Snowmobile II, NPS

promulgated a new final rule governing winter use activities. Special

Regulations; Areas of the National Park System, 69 Fed. Reg. 65,348 (Nov. 10,

2004) [hereinafter 2004 Rule]. Consistent with the prior rules, the 2004 Rule

included a ban on snowplane use in Grand Teton National Park. Id. at 65,366.

By its terms, the 2004 Rule was set to expire after three winter use seasons. Id. at

65,348. Remarkably, the 2004 Rule remained in effect as intended through the

end of the 2006-2007 winter use season. 2

      In the midst of all of this, Save Our Snowplanes filed this lawsuit in the

United States District Court for the District of Wyoming on March 29,

2005—while the 2004 Rule was in effect. It challenged the validity of a

snowplane ban in Grand Teton National Park. In its complaint, Save Our

      2
        Well after the complaint in our present case was filed, NPS promulgated
the 2007 rule that preserved what had become a longstanding prohibition on
snowplane use in Grand Teton National Park. Special Regulations; Areas of the
National Park System, 72 Fed. Reg. 70,781, 70,803 (Dec. 13, 2007) [hereinafter
2007 Rule]. On September 15, 2008, the United States District Court for the
District of Columbia vacated the 2007 Rule. Greater Yellowstone Coal. v.
Kempthorne, 577 F. Supp. 2d 183, 210 (D.D.C. 2008). In order to ensure that
there was a rule to govern winter use activities during the entirety of the 2007-
2008 winter use season, the United States District Court for the District of
Wyoming reinstated the 2004 Rule on November 7, 2008. Order Implementing
Temporary Remedy and Granting Mot. to Intervene, State of Wyoming v. U.S.
Dep’t of the Interior, Nos. 07-CV-0319-B & 08-CV-0004-B, at 21 (D. Wyo. Nov.
7, 2008).

                                        -6-
Snowplanes alleged that NPS had: (1) continued to unlawfully enforce the 2001

Rule vacated by International Snowmobile II; (2) acted arbitrarily and

capriciously in violation of the APA by failing to supply a reasoned analysis for

its decision to completely eliminate snowplane use on Jackson Lake; (3) violated

NEPA by failing to provide sufficient notice to the public regarding the

elimination of snowplanes from Jackson Lake; and (4) violated NEPA by failing

to consider reasonable alternatives that would have allowed continued but limited

use of snowplanes on Jackson Lake. Despite Save Our Snowplanes’ protestations

to the contrary, the district court recognized that NPS was not unlawfully

enforcing the 2001 Rule, which had been superseded by three subsequent rules

and a Compendium Amendment. Order Upholding Agency Action, Save Our

Snowplanes v. Norton, No. 05-CV-100-D, at 19 (D. Wyo. June 27, 2007). Rather,

it was the 2004 Rule that was in effect when the complaint was filed. Save Our

Snowplanes’ first claim therefore lacked merit. Then, despite acknowledging that

Save Our Snowplanes’ complaint challenged the 2001 Rule, the district court

analyzed the validity of the 2004 Rule. Id. at 22. It rejected the reasonable

alternatives claim because Save Our Snowplanes submitted no comments on the

snowplane ban during the scoping process, and comments NPS received did not

suggest allowing limited snowplane use. Id. at 35-36. The district court then

rejected the remaining two claims on their merits. Id. at 30, 33. Accordingly, the




                                        -7-
district court denied the petition for review. Id. at 39. Save Our Snowplanes now

appeals.

                                          II

      Before reaching the merits of Save Our Snowplanes’ appeal, we must

ensure that the district court had jurisdiction over this case. Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 94 (1998); Qwest Corp. v. Pub. Utils. Comm’n of

Colo., 479 F.3d 1184, 1191 (10th Cir. 2007). This includes ensuring that Save

Our Snowplanes has constitutional standing to raise its claims. Qwest Corp., 479

F.3d at 1191. Because it invoked the jurisdiction of the federal courts, Save Our

Snowplanes bore the burden of alleging in its complaint sufficient facts to

demonstrate standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

“[T]he standing inquiry requires careful judicial examination of a complaint’s

allegations to ascertain whether the particular plaintiff is entitled to an

adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737,

752 (1984) (emphasis added). We review questions of standing de novo. Stewart

v. Kempthorne, 554 F.3d 1245, 1254 (10th Cir. 2009).

      Save Our Snowplanes, as an association, was not directly injured by the

snowplane ban, so its standing is derivative of that of its members. Hunt v.

Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342 (1977). An organization

has representational standing only if: “(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to protect are germane

                                         -8-
to the organization’s purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit.” Id. at

343.

       Under the first prong, we consider whether any member of Save Our

Snowplanes would have standing to sue in her own right. Constitutional standing

requires injury-in-fact, causation, and redressability. Lujan, 504 U.S. at 560-61;

Stewart, 554 F.3d at 1253-54. To judge standing in this case, we must interpret a

complaint whose clarity is murky at best. As did the district court, we read the

complaint as a challenge to the 2001 Rule governing winter use activities in

Grand Teton National Park. 3 In addition to the portion of the complaint on which

the district court relied, Save Our Snowplanes explicitly contested NPS’s

“decision to eliminate snowplane use on Jackson Lake after the 2001-2002 winter



       3
           As the district court put it:

       Plaintiff’s arguments are premised on the erroneous assertion that
       NPS has unlawfully continued to enforce the 2001 Rule despite its
       vacatur by the Wyoming Court in [International Snowmobile II].
       However, the 2001 Rule and its rule-making process have been
       superseded by three subsequent rule-making processes and a
       Compendium Amendment, all of which re-adopted the prohibition on
       snowplane use on Jackson Lake. . . .

       This fundamental misunderstanding plagues Plaintiff’s entire brief,
       which never really addresses the 2004 Rule and the process that led to
       it.

Order Upholding Agency Action at 19.

                                           -9-
season.” That prohibition was created by the 2001 Rule. Fairly read, the

complaint challenged the 2001 Rule.

      Unlike the district court, however, we will not assume that Save Our

Snowplanes intended to challenge the 2004 Rule even though it never mentioned

that rule in the complaint. Our conclusion that the complaint challenged the 2001

Rule is confirmed by Save Our Snowplanes’ response to our show cause order, in

which it replied that it “is not challenging the 2004 Final Rule per se; rather, the

Plaintiff contends that the analyses set forth in the 2000 FEIS, ROD, and 2001

Final Rule were flawed and unlawful” (second emphasis added). 4 Thus, we

consider whether Save Our Snowplanes had standing to challenge the 2001 Rule.

      In addressing the injury in fact requirement, Save Our Snowplanes alleges

that its members “recreate, specifically ice fish, on Jackson Lake Reservoir using

‘snowplanes.’” It alleges further that NPS has unlawfully “eliminat[ed]

snowplane use on Jackson Lake within the Grand Teton National Park.” Members

of Save Our Snowplanes have historically used snowplanes on Jackson Lake, but

they could no longer do so under the terms of the ban. This loss of use

constitutes injury in fact.




      4
       Although we may not definitively rely on an a post-hoc appellate filing to
determine what claims were raised in the complaint before the district court, we
do consider that document as supporting our interpretation.

                                         - 10 -
      That members of Save Our Snowplanes were unable to use snowplanes on

Jackson Lake was caused, at some point, by the challenged 2001 Rule. Thus, the

complaint sufficiently alleged causation.

      As for redressability, the complaint sought only prospective relief in the

form of an injunction prohibiting enforcement of the 2001 Rule. 5 But, as the

district court recognized, “the 2001 Rule and its rule-making process ha[d] been

superseded by three subsequent rule-making processes and a Compendium

Amendment.” Order Upholding Agency Action at 19. That rule had also been

vacated by judicial order. International Snowmobile II, 340 F. Supp. 2d at 1266.

When Save Our Snowplanes filed its complaint in March 2005, the 2004 Rule, not

the 2001 Rule, governed snowplane use in Grand Teton National Park. See 69

Fed. Reg. at 65,348 (stating that the 2004 Rule became effective on December 10,

2004). Because the 2001 Rule was not in effect when Save Our Snowplanes filed

its complaint, the district court could not have enjoined the snowplane ban

contained therein. Save Our Snowplanes’ alleged injury is therefore not

redressable by the requested relief. Accordingly, no individual member of Save

Our Snowplanes has standing to contest the alleged injury, and Save Our




      5
        Although the complaint also sought “[a]n award of attorneys fees and
costs of litigation,” such a prayer does not seek retrospective relief for harms
already incurred.

                                        - 11 -
Snowplanes as an association lacks standing. 6 Thus, the district court lacked

jurisdiction.

                                        III

      For the foregoing reasons, we VACATE the judgment of the district court

and REMAND the case with directions to dismiss for lack of jurisdiction.



                                                Entered for the Court



                                                Carlos F. Lucero
                                                Circuit Judge




      6
       Because we conclude that the allegations in Save Our Snowplanes’
complaint are insufficient to provide any individual member with standing, we
need not consider the remaining two prongs of the Hunt test.

                                       - 12 -
