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THIEBAUT v. COLORADO SPRINGS UTILITIES
BILL THIEBAUT, in his official capacity as District Attorney for the Tenth Judicial District, Colorado; OFFICE OF THE DISTRICT ATTORNEY FOR THE TENTH JUDICIAL DISTRICT, COLORADO; PEOPLE OF THE STATE OF COLORADO, Plaintiffs-Appellants,
SIERRA CLUB, Plaintiff,
v.
COLORADO SPRINGS UTILITIES, an enterprise of the City of Colorado Springs; CITY OF COLORADO SPRINGS, a municipal corporation, Defendants-Appellees.
No. 10-1471.
United States Court of Appeals, Tenth Circuit.
October 12, 2011.
Before KELLY, SILER† and MATHESON, Circuit Judges.
SCOTT M. MATHESON Jr., Circuit Judge. In 2005, Bill Thiebaut—the District Attorney for the Tenth Judicial District of Colorado—filed a lawsuit pursuant to section 1365(a) of the Clean Water Act ("CWA") against the City of Colorado Springs (the "City"). Mr. Thiebaut named three plaintiffs: (1) himself, in his official capacity as District Attorney, (2) the Office of the District Attorney for the Tenth Judicial District of Colorado, and (3) the People of the State of Colorado (collectively "Mr. Thiebaut").1 Mr. Thiebaut sought injunctive relief and civil penalties against the City for its alleged discharge of pollutants into a creek in violation of the CWA. The district court granted the City's motion for summary judgment, concluding Mr. Thiebaut lacked standing to bring his claims. Mr. Thiebaut has appealed that ruling. We hold that Mr. Thiebaut lacks standing and affirm the district court's grant of summary judgment in favor of the City. I. BACKGROUNDA. Facts Because this appeal is from a grant of summary judgment in favor of the City, we recite the following facts in the light most favorable to the nonmoving party, Mr. Thiebaut. See Fredericks v. Jonsson, 609 F.3d 1096, 1097 (10th Cir. 2010).
† The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
1. For convenience and clarity, throughout this opinion we refer to the plaintiffs-appellants collectively as "Mr. Thiebaut."
2. At oral argument, Mr. Thiebaut's counsel stated that Mr. Thiebaut was also making a "direct" standing argument on appeal. But our review of his briefing indicates that he has not adequately raised such an argument. As the plaintiff-appellant, Mr. Thiebaut has the burden of demonstrating he has standing. See Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236, 1240 (10th Cir. 2009) ("The party invoking federal jurisdiction—here, the plaintiffs—bears the burden to demonstrate standing"). Nowhere in his briefing does Mr. Thiebaut argue that he has direct standing to assert his claims in his official capacity as district attorney. Additionally, nowhere in his brief does Mr. Thiebaut allege he suffered injury in his official capacity as a result of the City's conduct, a requisite element of direct standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Because his arguments on the issue are inadequate, we do not address whether Mr. Thiebaut has "direct" standing to assert his claims. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) ("[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief.").
3. The only arguments concerning the independent standing or capacity of the Office of the District Attorney for the Tenth Judicial District of Colorado or the People of the State of Colorado were raised in Mr. Thiebaut's reply brief. We have consistently stated that "arguments raised for the first time in a reply brief are generally deemed waived." United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011). We perceive no grounds for deviating from that practice in this case.
4. At oral argument, counsel for the City conceded that Mr. Thiebaut would have standing if he had sued as an individual citizen, but he chose not to do so. Oral Argument at 11:55-12:20, Thiebaut v. Colorado Springs Utilities, ____ Fed. Appx. ____ (No. 10-1471).
5. The phrase "parens patriae" "may also refer to the common-law concept that the state has a duty to act as a guardian of children and the mentally disabled." Sierra Club, 646 F.3d at 1273 n.3 (10th Cir. 2011) (Lucero, J., dissenting).
6. Because we conclude that Mr. Thiebaut does not qualify for parens patriae standing, we do not address whether or in what circumstances a plaintiff that is not a state or state attorney general may qualify for parens patriae standing.
7. Because we hold that the interests Mr. Thiebaut seeks to protect are not germane to his office's purpose, we need not decide whether the district attorney's office is a membership association that might qualify for associational standing or whether the claims asserted by Mr. Thiebaut would require the participation of individual "members" of his office.
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