Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 24, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
LEW WHEELWRIGHT, individually and
on behalf of all those similarly situated;
KENT WRIGHT, individually and on
behalf of all those similarly situated;
DAVID STORY, individually and on
behalf of all those similarly situated;
UTAH AIRWAYS LLC, individually and
on behalf of all those similarly situated;
DAVID WESTWOOD, individually and
on behalf of all those similarly situated;
DURBANO PROPERTIES LC, a Utah No. 22-4083
limited liability company, individually and (D.C. No. 1:21-CV-00075-DBB)
on behalf of all those similarly situated; (D. Utah)
THE WESTERN GROUP LC, individually
and on behalf of all those similarly
situated; DAVID L. DURBANO,
individually and on behalf of all those
similarly situated; JEFF STRAHAN,
individually and on behalf of all those
similarly situated; TROY LARKIN,
individually and on behalf of all those
similarly situated; STEPHEN SWENSON,
individually and oh behalf of all those
similarly situated,
Plaintiffs - Appellants,
and
OGDEN REGIONAL AIRPORT
ASSOCIATION, INC., a Utah non-profit
corporation; WENDY MARSELL,
individually and on behalf of all those
similarly situated; WAYNE LAW,
individually and on behalf of all those
similarly situated; KELLY CROZIER,
individually and on behalf of all those
similarly situated; ANDREW HECHT,
Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 2
individually and on behalf of all those
similarly situated; BARRY NEUMAYER,
individually and on behalf of all those
similarly situated; BRENT CARLSON,
individually and on behalf of all those
similarly situated; DAN BLUMEL,
individually and on behalf of all those
similarly situated; DAVE CARLSON,
individually and on behalf of all those
similarly situated; DKS PROPERTIES,
LLC, a Utah limited liability company,
individually and on behalf of all those
similarly situated; ED RICH, individually
and on behalf of all those similarly
situated; FLYING R LLC, individually and
on behalf of all those similarly situated;
JUSTIN R. ECCLES, individually and on
behalf of all those similarly situated;
ROYAL S. ECCLES, individually and on
behalf of all those similarly situated;
LARRY E. JONES, individually and on
behalf of all those similarly situated;
RALPH CHADBURN, individually and on
behalf of all those similarly situated; R. B.
WILLEY, individually and on behalf of all
those similarly situated; ROUND TRIP
THAIRAPY, a Utah Limited Liability
Company, individually and on behalf of all
those similarly situated, LLC; MARK
COWLEY, individually and on behalf of
all those similarly situated; DAVID L.
SHUMWAY, individually and on behalf of
all those similarly situated; JAMES G.
CUTRUBUS, individually and on behalf of
all those similarly situated; RELIABLE
EQUIPMENT & ENGINEERING LLC,
individually and on behalf of all those
similarly situated; BRUCE MASON,
individually and on behalf of all those
similarly situated; MANAGEMENT
SCIENCES CORP., individually and on
behalf of all those similarly situated;
SHAMROCK 2 LLC, individually and on
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behalf of all those similarly situated;
COWRIDE LLC, individually and on
behalf of all those similarly situated; SETH
C. SCHALL, individually and on behalf of
all those similarly situated; KATHERINE
J. SCHALL, individually and on behalf of
all those similarly situated; CHARLES
JOHNSON, individually and on behalf of
all those similarly situated; JOHN
CARPER, individually and on behalf of all
those similarly situated; TIMOTHY RENE
FELKER, individually and on behalf of all
those similarly situated; A&R INC,
individually and on behalf of all those
similarly situated; ROBERT L.
JOHNSON, individually and on behalf of
all those similarly situated; JOEL W.
PIERCY, individually and on behalf of all
those similarly situated; JIM PETERSON,
individually and on behalf of all those
similarly situated; SHERRIE PETERSON,
individually and on behalf of all those
similarly situated; TAMERA NEWMAN,
individually and on behalf of all those
similarly situated; SHEILA GARVEY,
individually and on behalf of all those
similarly situated; SCOTT MAJOR;
MEIJE INVESTMENTS LLC, a Utah
limited liability company individually and
on behalf of all those similarly situated;
OSCAR VAN THORNOCK, individually
and on behalf of all those similarly
situated; RICK ROHLER, individually and
on behalf of all those similarly situated;
VERN FARR, individually and on behalf
of all those similarly situated; FARRV
LLC, individually and on behalf of all
those similarly situated; SCOTT
JACKSON, individually and on behalf of
all those similarly situated; STEPHEN
FABISZAK, individually and on behalf of
all those similarly situated; RSL HANGAR
LLC, individually and on behalf of all
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those similarly situated; JOHN
SINGLETON, individually and on behalf
of all those similarly situated; RALPH
DOUGLAS, individually and on behalf of
all those similarly situated; STRICTLY
EXPERIMENTAL CREATIONS INC. ,
individually and on behalf of all those
similarly situated; DAVID ERICKSON,
individually and on behalf of all those
similarly situated; HOMER CUTRUBUS,
individually and on behalf of all those
similarly situated; TROY CUTRUBUS,
individually and on behalf of all those
similarly situated; H & P INVESTMENTS,
a Utah limited liability company
individually and on behalf of all those
similarly situated; ROB MARTIN,
individually and on behalf of all those
similarly situated; DAVID R. WALKER,
individually and on behalf of all those
similarly situated; DON PANTONE,
individually and on behalf of all those
similarly situated; MIKE MCKEE,
individually and on behalf of all those
similarly situated; LUCKY LAKE LLC,
individually and on behalf of all those
similarly situated; TIMOTHY J. POPP,
individually and on behalf of all those
similarly situated; BEN SHELDON,
individually and on behalf of all those
similarly situated,
Plaintiffs,
v.
OGDEN CITY AIRPORT, a subdivision of
Ogden City; OGDEN CITY, a municipality
in the State of Utah; BRYANT GARRETT,
in his capacity as manager of the Ogden
City Airport,
Defendants - Appellees.
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_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
_________________________________
This is an appeal by plaintiffs from the district court’s dismissal of (1) their
federal claims in the second amended class action complaint (SAC) with prejudice
under Fed. R. Civ. P. 12(b)(6) and (2) their state claims without prejudice under
28 U.S.C. § 1367(c)(3). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Plaintiffs allege the following in the SAC. Plaintiffs are individuals or entities
that own or have owned aircraft hangars on ground leased from defendant Ogden
City Airport (Airport)—a public aviation facility owned and managed by defendant
Ogden City (City). Defendant Bryant Garrett is the manager of the Airport.
Plaintiffs’ ownership and use of the hangars are governed by ground lease
agreements, which contain the following provision—or something nearly identical—
requiring compliance with a particular City ordinance, namely Title 8-3-3:
Lessee hereby acknowledges the applicability of Title 8, Ogden City
Ordinances to this Lease Agreement. Lessee hereby acknowledges notice
of the terms, conditions and requirements presently contained therein and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. 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.
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agrees, so far as said ordinance applies to persons such as Lessee herein, to
comply with such ordinance as now in effect or as it may be amended
during the term of this Lease or any renewal. Specifically, the terms and
conditions of Title 8-3-3 (A through G) Leases and Agreements as
currently existing or as may be amended are incorporated herein by
reference and made part hereof as though written herein.
Aplt. App., vol. I at 82.
Until April 2021, Title 8-3-3 allowed the Airport to grant ground leases for
private hangars for a term of 15 years. As to lease renewal, Title 8-3-3 provided that
when the lease expired, the “lessee shall have the ‘first right of refusal’ to renew
the lease; provided however, that the lease is not in default. Each renewal term
will be for five (5) years.” Id. at 81.1
According to plaintiffs, “[t]he lease renewals have historically been automatic
upon the [lessee’s] request.” Id. As a result, plaintiffs alleged that they “placed great
stock in being able to reliably renew their leases . . . which has given [plaintiffs]
confidence in pouring hundreds of thousands of dollars’ worth of construction
upgrade and upkeep into their respective hangars.” Id. at 82.
In late 2018, the Airport proposed a new Business Plan (Plan) to stem the tide
of its operating losses. The Plan recommended changes to existing ground leasing
policies and further identified other areas where changes should be made to allow the
Airport to come close to breaking even from an operations standpoint. See Aplt.
App., vol. II at 291-303. Plaintiffs alleged that the Plan proposed that all future
1
Most of the lease agreements also contain a “first right of refusal” provision
in addition to the one contained in Title 8. See Aplt. App., vol. I at 82.
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ground leases for construction of new hangars would last no longer than the time
needed for the lessees to recoup their construction investment, after which the
hangars would belong to the Airport and be leased out through facility leases at a
higher rate. See Aplt. App., vol. I at 84-85. They further alleged that under the Plan,
the ground leases for existing hangars would not be renewed once the hangars
reached a certain age. See id. Although the Plan was not formally adopted at that
time, plaintiffs alleged that the Airport’s interactions with hangar owners
“demonstrated that the [Plan] was in fact being utilized as a model for assisting the
Airport turn a profit.” Id.
In April 2021, Mr. Garrett formally submitted the proposed amendments to
Title 8 to the Ogden City Council (City Council). Several groups opposed the
amendments, including the Ogden Airport Advisory Board, the Ogden Regional
Airport Association, and most of the hangar owners. Ultimately, however, the City
Council adopted the amendments. Shortly thereafter, plaintiffs filed suit.
II. DISTRICT COURT PROCEEDINGS
Defendants moved to dismiss plaintiffs’ first amended complaint under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The district
court denied the motion to dismiss for lack of jurisdiction but agreed that plaintiffs
had failed to state plausible claims for relief. Plaintiffs sought and were granted
permission to file their SAC in which they reasserted their previous claims of
promissory estoppel, physical taking, regulatory taking, and entitlement to
declaratory relief under 28 U.S.C. § 2201, and added new claims for First
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Amendment retaliation, breach of contract, and breach of the covenant of good faith
and fair dealing. Plaintiffs also added Mr. Garrett as a defendant in their claim under
42 U.S.C. § 1983. Defendants again moved to dismiss.
The district court granted the motion and dismissed plaintiffs’ federal claims
(physical taking, regulatory taking, First Amendment retaliation, and declaratory
judgment) with prejudice under Rule 12(b)(6). Then, having dismissed the federal
claims, the court declined to exercise supplemental jurisdiction over plaintiffs’ state
law claims (promissory estoppel, breach of contract, and breach of the covenant of
good faith and fair dealing) and dismissed those claims without prejudice under
28 U.S.C. § 1367(c)(3). Plaintiffs appeal.
III. STANDARD OF REVIEW
“We review de novo a district court’s grant of a 12(b)(6) motion to dismiss.”
Johnson v. Reyna, 57 F.4th 769, 774 (10th Cir. 2023). “We accept as true all
well-pleaded factual allegations in the complaint and view them in the light most
favorable to . . . the non-moving party. To survive a motion to dismiss, a complaint
must include enough facts to state a claim to relief that is plausible on its face.”
Id. (citations and internal quotation marks omitted). A claim is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009). But “the tenant that a court must accept” well-pled factual
allegations as true “is inapplicable to legal conclusions.” Id.2
IV. LEGAL FRAMEWORK
A. Takings Claims
1. Physical Taking
“The Fifth Amendment’s Takings Clause provides that ‘private property [shall
not] be taken for public use, without just compensation.’” N. Mill St., LLC v. City of
Aspen, 6 F.4th 1216, 1224 (10th Cir. 2021) (quoting U.S. Const. amend. V).
The text of the Fifth Amendment . . . provides a basis for drawing a
distinction between physical takings and regulatory takings. Its plain
language requires the payment of compensation whenever the government
acquires private property for a public purpose, whether the acquisition is
the result of a condemnation proceeding or a physical appropriation. But
2
The district court dismissed plaintiffs’ claims for declaratory relief under
28 U.S.C. § 2201 on the grounds that it did not have the authority to issue declaratory
judgments absent “some independent basis of jurisdiction for doing so.” Aplt. App.,
vol. II at 347, 358 (internal quotation marks omitted). See also Devon Energy Prod.
Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012)
(recognizing that “the Declaratory Judgment Act does not confer jurisdiction upon
federal courts, so the power to issue declaratory judgments must lie in some
independent basis of jurisdiction,” namely “diversity jurisdiction” or “federal
question jurisdiction”) (internal quotation marks omitted)). Having found no federal
question jurisdiction, the court dismissed the claims for declaratory relief. Because
we affirm the dismissal of the federal claims, the claims for declaratory relief were
also properly dismissed.
Relatedly, “[u]nder 28 U.S.C. § 1367(c)(3), a district court may decline to
exercise supplemental jurisdiction if the . . . court has dismissed all claims over
which it has original jurisdiction. When all federal claims have been dismissed, the
court may, and usually should, decline to exercise jurisdiction over any remaining
state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)
(internal quotation marks omitted). Again, because we affirm the court’s dismissal of
the federal claims, the court properly declined to exercise supplemental jurisdiction
over the state claims.
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the Constitution contains no comparable reference to regulations that
prohibit a property owner from making certain uses of her private property.
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,
321-22 (2002). Although the property interest at the core of physical takings claims
is typically real or personal property, the Fifth Amendment also extends to intangible
rights, such as leaseholds and contracts. See, e.g., United States v. Gen. Motors
Corp., 323 U.S. 373, 378 (1945) (leaseholds); Lynch v. United States, 292 U.S. 571,
579 (1934) (contracts). But even if a private party’s contract rights constitute a
property right, “the exercise of contractual rights by a governmental contracting party
generally does not give rise to a constitutional claim. See Hughes Commc’ns Galaxy,
Inc. v. United States, 271 F.3d 1060, 1070 (Fed. Cir. 2001) (holding that “[t]aking
claims rarely arise under government contracts because the Government acts in its
commercial or proprietary capacity in entering contracts, rather than in its sovereign
capacity. Accordingly, remedies arise from the contracts themselves, rather than
from the constitutional protection of private property rights”) (citation omitted)).
2. Regulatory Taking
In addition to physical takings, “[t]he Supreme Court has recognized that
government regulation of private property may, in some instances, be so onerous that
its effect is tantamount to a direct appropriation or ouster—and that such regulatory
takings may be compensable under the Fifth Amendment.” N. Mill St., 6 F.4th
at 1224 (internal quotation marks omitted). But a per se regulatory taking occurs
only under “the extraordinary circumstance when no productive or economically
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beneficial use of land is permitted” resulting from the government regulation.
Tahoe-Sierra, 535 U.S. at 330 (internal quotation marks omitted). “Anything less
than a complete elimination of value, or a total loss,” must be analyzed under the
framework set forth in Penn Central Transportation Co. v. City of New York,
438 U.S. 104 (1978). Id. (internal quotation marks omitted). A plaintiff seeking to
establish a regulatory taking has a “heavy burden.” Buffalo Teachers Fed’n v. Tobe,
464 F.3d 362, 375 (2d Cir. 2006).
B. First Amendment Retaliation
To state a First Amendment retaliation claim, a plaintiff must plausibly allege
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s exercise of constitutionally
protected conduct.
Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018) (internal quotation marks
omitted).
V. DISCUSSION
A. Takings Claims
Plaintiffs maintain that they have stated a plausible claim for a physical taking
because the City acted as “a sovereign” when it amended Title 8, and then, pursuant
to its “sovereign” authority, the “City acquired property for the public good from the
rightful owners.” Aplt. Opening Br. at 11. See also Pi Elecs. Corp. v. United States,
55 Fed. Cl. 279, 286 (2003) (holding that “in order to show that it is entitled to a
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takings remedy, plaintiff must have alleged that the Government was exercising its
right as sovereign to acquire property from the rightful owner for the public good”)
(internal quotation marks omitted)).
According to plaintiffs, they are rightful owners of the Airport property
because their leasehold interests “were valued as a fee simple assessment and . . .
historically [some lessees had] pass[ed] the hangars from generation to generation or
placed [them] in trusts for inheritance purposes.” Aplt. Opening Br. at 11. They
further maintain that the first right of refusal created a property interest that was
taken when the City modified Title 8. See id. at 14.
Assuming, without deciding, that the City acted as “sovereign,” the problem
for plaintiffs is that they have failed to provide any authority that the “first right of
refusal,” fee-simple assessments, or terms of their estate-planning documents made
them the rightful owners of the Airport property. As such, we decline to consider
these arguments. See Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992)
(declining to consider issue in part because appellant’s position not even minimally
supported by legal argument or authority); Fed. R. App. P. 28(a)(8)(A) (Among other
things, “[t]he appellant’s brief must contain . . . the argument, which [in turn] must
contain[] appellant’s contentions and the reasons for them, with citations to the
authorities . . . on which the appellant relies”).3
3
Plaintiffs argue for the first time on appeal that the lease agreements are
invalid or unenforceable as illusory. See Aplt. Opening Br. at 11-13. We decline to
consider the issue because “[g]enerally, an appellate court will not consider an issue
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Similarly, we affirm the district court’s dismissal of plaintiffs’ regulatory-
taking claim because they fail to challenge the basis for the district court’s ruling.
See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015); see also
United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir. 1995) (explaining that
“[i]t is insufficient merely to state in one’s brief that one is appealing an adverse
ruling below without advancing reasoned argument as to the grounds for the appeal”)
(internal quotation marks omitted)).
B. First Amendment Retaliation
We agree with the district court that “[p]laintiffs’ commencement of this
lawsuit against the City and the Airport is a constitutionally protected activity under
the petitioning clause of the First Amendment.” Aplt. App., vol. II at 355. As such,
we address the second and third elements required to state a plausible First
Amendment retaliation claim.
The second element requires a plaintiff to plausibly plead that “the defendant’s
actions caused the plaintiff to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity.” Requena, 893 F.3d at 1211
(internal quotation marks omitted). The district court explained that the action that
plaintiffs “now allege was retaliatory and chilling—Defendants’ refusal to renew
their ground leases—is the same action that led Plaintiffs to bring this lawsuit in the
first place.” Aplt. App., vol. II at 356. This claim, according to the court, was
raised for the first time on appeal.” Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229,
1232 (10th Cir. 1997).
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beyond the parameters of a “[t]ypical” retaliation claim in which the alleged
retaliatory conduct “occur[s] outside the scope of the plaintiff’s petition for redress.”
Id. at n.96 (emphasis added), citing Van Deelen v. Johnson, 497 F.3d 1151, 1157
(10th Cir. 2007). Noting plaintiffs’ failure to “identify[] . . . a single case in which a
plaintiff brought a First Amendment retaliation claim in such circumstances, let alone
one in which such a claim was found plausible,” the court determined that plaintiffs
failed to plausibly plead the second element. Aplt. App., vol. II at 356. Again,
plaintiffs’ failure on appeal to provide any authority to support their argument means
that we will not consider the issue. See Phillips, 956 F.2d at 953-54; Fed. R. App. P.
28(a)(8)(A).
But even if plaintiffs met the second element, they did not meet the third
element, which requires them to plausibly plead “that the defendant’s adverse action
was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.” Requena, 893 F.3d at 1211 (internal quotation
marks omitted). We agree with the district court that defendants’ failure to renew the
ground leases was not “a response to Plaintiffs’ exercising their First Amendment
rights by bringing this lawsuit.” Aplt. App., Vol. II at 355. To the contrary, it was
defendants’ refusal to renew the leases that “led Plaintiffs to file this lawsuit in the
first place.” Id. In addition, the court explained that
[t]he fact that the Airport allegedly told certain plaintiffs after the
commencement of this lawsuit that no one who is participating in it will
receive a lease renewal does not change the fact that the decision to stop
renewing ground leases in favor of other types of leases was made before
this lawsuit began. Thus, there are no grounds for the court to reasonably
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infer that Defendants’ refusal to renew any of Plaintiffs’ ground leases, and
any injury that may have cause, was substantially motivated by Plaintiffs’
lawsuit.
Id. at 356.
Plaintiffs’ contention that defendants’ attempts to resolve individual claims as
“an effort to retaliate against and/or bully Lessees who opted to engage in the
lawsuit,” is unavailing. Aplt. Opening Br. at 17. Instead, we agree with the district
court that this was “essentially a settlement offer, not an act of deterrence or
intimidation.” Aplt. App., vol. II at 357.
VI. CONCLUSION
The judgment of the district court is affirmed. We deny appellees’ request for
an award of attorney fees, which is based on a provision in the lease agreements that
entitles the prevailing party in litigation concerning a breach or default to an award of
reasonable fees. Because the state-law contract claims were dismissed without
prejudice, defendants are not the prevailing party on the breach-of-contract claims in
this federal action.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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