UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MARCY BRITTON, Plaintiff - Appellant,

v. MAYOR TIM KELLER; DANNY NEVAREZ; CITY OF ALBUQUERQUE, Defendants - Appellees. No. 20-2054 (D.C. No. 1:19-CV -01113-KWR-JHR) (D. New Mexico)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , Circuit Judge, LUCERO , Senior Circuit Judge, and McHUGH , Circuit Judge.

________________ _________________ The City of Albuquerque, New Mexico (the “City”), has a “trap, neuter, release” (“TNR”) program for feral cats. The program involves catching, vaccinating, and sterilizing feral cats, then releasing them. Th e feral cats are supposed to be released where they were caught, but Marcy Britton alleges they are sometimes released elsewhere in the city. This, she claims, has resu lted in a colony of feral cats on or near her property. She sued the City, the mayor of the City, Tim Keller, and the director of the

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Federa l Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 15, 2021 Christopher M. Wolpert Clerk of Court2 City’s Animal Welfare Department, Danny Nevarez, under 42 U.S. C. § 1983, alleging the TNR program has worked a taking of he r property. She also sued under the New Mexico Constitution and state to rt law. The district court dismissed her operative, amended complaint, holding (1) the TNR program could not constitute a taking as a matter of law; (2) Ms. Britton had not allege d sufficient facts to demonstrate a taking even if it could; and alterna tively holding (3) the individual defendants were entitled to qualified immunity. The district court also dec lined to exercise supplemental jurisdiction over the state law claims. Ms. Britton appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND A. Factual History 1 The City operates a TNR pr ogram by which feral felines are trapped, sterilized, and vaccinated. Although they are supposed to be released where originally trapped, cats are sometimes released at a “new location unf amiliar to the cat regardless of whether the appropriate care or sustenance exists at that location and without re gard to impacts to property values, or damage to private property.” App. at 7. Mr. Keller “has directed the TNR program to continue” and Mr. Nevarez “orders that the cats continue to be dumped.” Id.

1 Because this appeal concerns a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the facts are those alle ged in the operative co mplaint, which are presumed to be true in this procedural posture. See Smallen v. The W. Union Co. , 950 F.3d 1297, 1305 (10th Cir. 2020).3 Ms. Britton has “a real property interest in certain real estate located in the City.” Id. at 6. The feral cats were released “in the vicinity of the pr operty in question.” Id. at 132 (quoting Ms. Britton’s response to the motion to dismiss, id. at 97). The cats then established a feral cat colony “residing near, or at times, on, [Ms. Britton’s] property,” risking her exposure to diseas es carried by the cats as well as damage to her property from the cats’ excrement and urine. Id. (quoting id. at 97). The feral cat colony near or on Ms. Britton’s property has contained “dozens, if not tens of dozens, of feral cats” over time, which enter or soil her property. Id. at 7. On one occasion, a party preparing to make an offer to purchase Ms. Britton’s property decided not to do so because of the feral cats. Ms. Britton believes the “property will no w appraise for less tha[n] she purchased [it] for as a result of” the TNR program. Id. at 7–8.
B. Procedural History Ms. Britton filed suit in the United States District Court for the District of New Mexico. Her amended complaint contained two counts. In Count I, brought under 42 U.S.C. § 1983, she alleged the TNR program worked a taking of her property in violation of the United States Constitution. Ms. Britton al so argued in Count I that this conduct violated the New Mexico Constitution. In Count II, she alleged trespass and nuisance under New Mexico tort law. The City moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 2 It argued Ms. Britton had not alle ged facts sufficient to show a

2 All relevant documents were jointly f iled by the three defendants. We attribute arguments common to all defendants to the City.4 violation of the Takings Clause or to sh ow the individual defendants were liable personally for the violation, and that the individual defe ndants were entitled to qualified immunity. It also argued the state law claims should be dismissed on sovereign immunity grounds and because the facts were insuffici ent to show a nuisance. Ms. Britton opposed the motion. The district court granted the motion to dism iss. It held “feral cat colonies do not constitute government occupa tion of [Ms. Britton’s] prope rty,” and the government’s actions in administering the TNR program co uld not legally constitu te a taking because any injury “was incidental” to the exercise of “police powers” and did not take the “property for public use.” Id. at 133–4. Employing the framework of Penn Central Transportation Co. v. City of New York , 438 U.S. 104 (1978 ), the district court alternatively held that Ms. Britton’s allegatio ns did not state a plau sible regulatory taking because “the character of the regulation outweighs any economic impact, even if severe,” and that her allegations did not “raise a pl ausible claim that government actions resulted in a reduction in value of her property.” App. at 138. Additionally, the district court held the individual defendants were entitled to qualified immunity be cause Ms. Britton had not sufficiently pleaded their personal involv ement or shown any constitutional violation was clearly established. Finally, the district court declined to exercise supplemental jurisdiction over the state law claims. The district court en tered judgment dismissing the § 1983 claim with prejudice and the state law claims without prejudice. Ms. Britton timely filed a notice of appeal.5 II. DISCUSSION We review de novo a district court’s gran t of a motion to dismiss, taking as true the well-pleaded allegati ons in the complaint. Smallen v. The W. Union Co. , 950 F.3d 1297, 1305 (10th Cir. 2020).
A. Legal Background The Fifth Amendment to the United Stat es Constitution proscribes taking of private property “for public use, without just compensation.” U.S. Const. amend. V; see also Alto Eldorado P’ship v. Cnty. of Santa Fe , 634 F.3d 1170, 1173 (10th Cir. 2011) (noting that the Takings Clause applie s against state and municipal entities via incorporation through the Fourteenth Amendm ent). “The paradigmatic taking requiring just compensation is a direct government appr opriation or physical invasion of private property.” Lingle v. Chevron U.S.A. Inc. , 544 U.S. 528, 537 (2005). But “[r]egulation of private pr operty may be so onerous th at it violates the Takings Clause of the Fifth Amendment and requires the government to provide compensation.” Ramsey Winch Inc. v. Henry , 555 F.3d 1199, 1208 (10th Cir. 2009). A per se regulatory taking occurs where “government requires an owner to suffer a permanent physical invasion of her property” or a regulati on “completely deprive[s] an owner of ‘ all economically beneficial us[e]’ of her property.” Lingle , 544 U.S. at 538 (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992) (emphasis in Lucas , second alteration
in Lingle )). Otherwise, a regulation may create a taki ng under standards the Supreme Court set forth in Penn Central

. See Ramsey Winch , 555 F.3d at 1208. “T he major factors under the6 Penn Central inquiry are (1) ‘[t]he eco nomic impact of the regulation on the claimant,’ (2) ‘the extent to which the regulation ha s interfered with distin ct investment-backed expectations,’ and (3) ‘the character of the governmental action.’” Id. at 1210 (quoting Penn Cent., 438 U.S. at 124) (alteration in original, italicization added). “ The Penn Central inquiry focuses on the magnitude of the economic impact of the regulatory action and the extent of the regulation’s interference with property rights to determine if the regulatory action co nstitutes a taking.” Alto Eldorado P’ship , 634 F.3d at 1174.
B. Application We first conclude the district court correc tly determined feral cats cannot be the instrumentality of a government physical occupation for purpose s of a paradigmatic taking. Because this means Ms. Britton can succeed only if she has properly alleged a regulatory taking, we then focus on Ms. Br itton’s argument regarding the district court’s Penn Central analysis. Ms. Britton argues the di strict court erred in performing a Penn Central analysis on a motion to dismi ss. In her view, because the Penn Central analysis is fact specific, a district court must wait for the factual developm ent that occurs in discovery before undertaking it. Ms. Britton is incorrect. Paradigmatic Taking A government invasion of propert y constitutes a paradigmatic taking. Lingle , 544 U.S. at 537. But our precedent bars Ms. Britt on from asserting that the cats themselves constitute a physical government invasion on her property. See Mountain States Legal Found. v. Hodel , 799 F.2d 1423, 1428 (10th Ci r. 1986) (en banc) (rejecting the “argument that . . . wild hors es are, in effect, instrumenta lities of the federal government7 whose presence constitutes a . . . governme ntal occupation of the Association’s property”). While the cats may have entered Ms. Britton’s property, the government did not; nor did the government direct the cats to do so. Therefore, we read Ms. Britton’s complaint as advancing some species of regulatory taking claim. The cases Ms. Britton cites on this point do not help her. She asks us to liken her claim to that in Fallini v. United States , 56 F.3d 1378 (Fed. Cir. 1995), but that case explicitly relies on our holding in Mountain States that wild horses are not instrumentalities of the United States government. Id. at 1383 (holding that the plaintiffs’ claim was time-barred because it must ha ve accrued from governmental action—the passing of the legislation at issue—not the acti ons of the horses, who were “not agents of the Department of the Interior”). Colvin Cattle Co. v. United States , 468 F.3d 803 (Fed. Cir. 2006), the other case Ms. Britton raises, is equally unhelpful. Th ere, the plaintiff—a private rancher—sued the United States, cl aiming the Bureau of Land Management’s (BLM) grant of grazing rights to another ra ncher and its failure to remove wild horses from a parcel of public land constituted a taki ng of the plaintiff’s st ockwatering rights on that land. Id. at 808–09. In particular, the plainti ff claimed the BLM had failed to prevent the other rancher’s domesticated cattle as we ll as wild horses from infringing on his water rights. Id. With respect to the cattle , the Federal Circuit rejected the claim both because the United States could not be held responsible for a priv ate rancher’s incursion on the plaintiff’s water rights and beca use the BLM had required that rancher to provide his own

water. Id. at 809. As for the wild horses, th e court held they were “outside the government’s control” so “t hey cannot constitute an inst rumentality of the government8 capable of giving rise to a taking.” Id. (citing another Federal Ci rcuit case which cited
Mountain States ). The feral cats here are likewise beyond the City’s control and Colvin provides no support for Ms. Britton’s claim. 3 To be sure, the City has cert ain responsibilities related to the feral cats at issue in this case. See N.M. Stat. Ann. § 77-1-12 (2009). But Mountain States teaches this sort of regulatory authority over cert ain species does not make thos e animals instrumentalities of the government. 799 F.2d at 1428. There, the claim was that the Secretary of the Interior was required to remove wild horses from priv ate lands on request but had failed to do so. Id. at 1424–25. We never addr essed whether the Secretary wa s, in fact, acting unlawfully in failing to remove the wild horses. We si mply determined there had been no taking. Id. at 1431. We similarly take no position as to whether the City is fulfilling its role under New Mexico law through the TNR program. That issue is not before us; the question is whether the City has violated the United States Constituti on’s Takings Clause, not the laws of New Mexico. We hold that it has not.

3 We note that Ms. Britton has waived any argument that cats can be distinguished from the horses at issue in Mountain States , because cats are tr aditionally domestic animals while the horses were specifically defined by statute as wild. Ms. Britton’s opening brief does not use the words “domes tic” or “domesticated,” nor does it use the term “wild animal” or otherwis e suggest the cats are not w ild animals. And she does not ask us to distinguish Mountain States on this ground. Although Ms. Britton does raise the domestic/wild distinction in reply, that is too late. The argument is waived. See United States v. Leffler , 942 F.3d 1192, 1197 (10th Cir. 2019) (“ In this Circuit, we generally do not consider arguments made for the first time on appeal in an appellant’s reply brief and deem those arguments waived.”).9 In doing so, we have no reason to—a nd therefore do not—pa ss on Ms. Britton’s state law claims for trespass and nuisance. Those claims were premised on supplemental jurisdiction and the district c ourt properly declined to exerci se jurisdiction over them (and dismissed them without prejud ice) when it determined the fed eral takings claim could not succeed. See Koch v. City of Del City , 660 F.3d 1228, 1248 (10th Cir. 2011) (“When all federal claims have been dism issed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.” (quotation marks omitted)). If the TNR program is unlawful under New Mexico law, as Ms. Br itton suggests, she may press her claims in a court of co mpetent jurisdiction. We hold only that any remedy she may have for the City’s alleged vi olations of N.M. Stat. Ann. § 77-1-12 is not found in the Takings Clause of the Un ited States Constitution. Regulatory Taking At oral argument, Ms. Britton sugg ested she might be advancing a per se regulatory taking theory. A per se regulatory taking, however, requires Ms. Britton to show either “a permanent physical invasion of her prop erty” or that the regulation deprives her of “ all economically beneficial use of her property.” Id. at 538 (internal quotation marks omitted, first emphasis a dded). Ms. Britton has not alleged the cats permanently occupied her pr operty. Nor has she alleged they deprived it of all economically beneficial use. See App. at 7–8 (alleging Ms. Britton’s “property will now appraise for less tha[n] she purch ased the property for” but not that it is valueless); Oral Argument at 1:44–1:54 (agreeing Ms. Britton was not arguing her property was deprived10 of economically beneficial use). She therefore cannot succeed on a per se regulatory taking theory. “[T]he pleading standard Rule 8 announc es does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal , 556 U.S. 662, 67 8 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). “To survive a motion to di smiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Llacua v. W. Range Ass’n , 930 F.3d 1161, 1177 (10th Cir. 2019) (quoting Iqbal , 556 U.S. at 678). Plausibility requi res the plaintiff to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc. , 757 F.3d 1125, 1136 (10t h Cir. 2014) (quoting Iqbal , 556 U.S. at 678). “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of suc cess, but also to info rm the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma , 519 F.3d 1242, 1248 (10th Cir. 2008). “The question is whether, if the allegations are true, it is plausible and not merely possible that th e plaintiff may obtain relief.” Llacua , 930 F.3d at 1177. Thus, under the Twombly and Iqbal pleading standard, Ms. Britton needed to plead facts sufficient to plausibly suggest she could show a non- per se regulatory taking under Penn Central . Further factual development is unnece ssary because the allegations in the amended complaint are taken to be true. If th e factual content in the amended complaint does not allow at least a plausible infere nce that a regulatory taking occurred under Penn11 Central , dismissal is appropriate. See Taylor v. United States , 959 F.3d 1081, 1087 (Fed. Cir. 2020) (concluding, in reviewing a motio n to dismiss a takings claim, “that the [plaintiffs’] regulatory-taking clai m cannot pass muster under [the Penn Central ] standards, even without further factual inquiry”). 4 Simply put, the district court did not err in assessing whether Ms. Britton’s factua l allegations were sufficient to state a regulatory taking claim under the governing legal standard. Usually, we would proceed to consider the district court’s analysis of Ms. Britton’s amended complaint to determin e whether the dismissal was, in fact, appropriate. That is unnece ssary here, however, because Ms. Britton has forfeited the argument that her amended complaint could survive if the district court correctly performed the Penn Central analysis at the motion to dismiss phase. To the extent Ms. Britton gestures on appeal toward an argument that the district court’s Penn Central analysis was wrong rather than merely premat ure, she does so insufficiently to preserve the issue for our review. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consid er arguments that are not raised, or are

4 The other circuit courts to have encoun tered this question, albeit in unpublished decisions, are all in agreement that the Penn Central analysis can be conducted at the pleading stage. See Sierra Nevada SW Ente rs., Ltd. v. Douglas County , 506 F. App’x 663, 666–67 (9th Cir. 2013) (unpublished) (applying the Iqbal pleading standard to a takings claim and fi nding it wanting under Penn Central ); Yur-Mar, L.L.C. v. Jefferson Par. Council , 451 F. App’x 397, 400–01 (5th Ci r. 2011) (unpublished) (same); see also Acorn Land, LLC v. Baltimore Cnty. , 402 F. App’x 809, 816–17 (4th Cir. 2010) (unpublished) (determining the plaintiff had met the Iqbal pleading standard when considering the Penn Central factors). We are unaware of a ny circuit court to have held to the contrary, and Ms. Britton does not di rect our attention to any such decision.12 inadequately presented, in an appellant’s opening brief.”). Ms. Britton’s opening brief contains only one paragraph arguably on this point, consisting of three sentences. She argues her amended complaint alleged an unre asonable “interfere[nce] with her property interests” through the creation of the feral ca t colony; that “the damage and blighting of her property” was in line with opening flood ga tes to release water; and that the district court’s decision was therefore wr ong. Appellant Br. at 12. At no point does she recite or attempt to apply the Penn Central factors. And Ms. Britton’s only citation on this point, Arkansas Game & Fish Commission v. United States , 568 U.S. 23 (2012), does not help her. There the Supreme Court considered a “temporary physi cal invasion by government.” Id. at 38. The Court concluded that temporary floodi ng could be a taking, but di d not conclude such flooding necessarily constituted a taking. Id. at 34, 38. Rather, it rema nded for consideration of a multifactor balancing test applicable to temp orary physical invasions , including many of the Penn Central factors. Id. at 38–41. Thus, that case establishes only that a balancing analysis must be performed even though the inva sion is temporary. The district court here did perform a Penn Central analysis, so Arkansas Game & Fish Commission is inapposite. Ms. Britton has not properly presen ted for our review an y argument that the district court’s application of the Penn Central analysis is erroneous. Ms. Britton next contends that the facts alleged are not themselves “fantastic,” Reply Br. at 5 & n.1 (“Appella nt was not making allegations akin to a visit from little green men from Mars or advent ures in time travel” (citing Iqbal , 556 U.S. at 696 (Souter, J., dissenting)), and that the Penn Central standard is fact-intensive. True enough, but13 these points do not show the district cour t erred in evaluating whether Ms. Britton’s amended complaint, taken as true, pl ausibly showed a regulatory taking. 5 Accordingly, her appeal cannot succeed.
III. CONCLUSION We AFFIRM

. Entered for the Court
Carolyn B. McHugh Circuit Judge

5 “When a defendant raises the qualified-imm unity defense, the plaintiff must . . . establish (1) the defendant violated a federa l statutory or constitutional right and (2) the right was clearly established at th e time of the defendant’s conduct.” Ullery v. Bradley , 949 F.3d 1282, 1289 (10th Cir. 2020). Beca use Ms. Britton has not demonstrated the district court erred in concluding the TNR pr ogram did not implicate the Takings Clause, the individual defendants are also entitled to qualified immunity under the first prong of that analysis.