                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit

                                                          March 7, 2014
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                          Clerk of Court
                               TENTH CIRCUIT


WILDEARTH GUARDIANS,

             Plaintiff-Appellant,

v.                                                  No. 13-2001
                                                 (D. New Mexico)
SCOTT BIDEGAIN, Chairman of the        (D.C. No. 1:12-CV-00118-LFG-KBM)
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, et al.,

             Defendants-Intervenors-
             Appellees.

______________________________

ARIZONA GAME AND FISH
COMMISSION, et al.,

      Amicus Curiae.
                                      ORDER


Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.



      This matter is before the court on appellee’s Motion for Clarification of

Order and Judgment. The motion is granted. The amended Order and Judgment,

filed nunc to the original filing date, February 19, 2014, is attached.



                                              Entered for the Court




                                              Elisabath A. Shumaker, Clerk




                                          2
                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit

                                                      February 19, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                         Clerk of Court
                               TENTH CIRCUIT


WILDEARTH GUARDIANS,

      Plaintiff - Appellant,

v.                                                No. 13-2001
                                      (D.C. No. 1:12-CV-00118-LFG-KBM)
SCOTT BIDEGAIN, Chairman of the
New Mexico State Game Commission,                   (D. N.M.)
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.


                    AMENDED 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).

                                        2
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




                                          3
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.

      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 as to

the Chairman without prejudice to refiling. See Brereton v. Bountiful City Corp.,




                                           4
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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