PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SANTA FE ALLIANCE FOR PUBLIC 

HEALTH AND SAFETY; ARTHUR 

FIRSTENBERG; MONIKA STEINHOFF, 

 Plaintiffs - Appellants, 

v. 

CITY OF SANTA FE, NEW MEXICO; 

HECTOR H. BALDERAS, Attorney 

General of New Mexico; UNITED 

STATES OF AMERICA, 

 Defendants - Appellees. 

No. 20-2066 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:18-CV-01209-KG-JHR)

_________________________________ 

Theresa Dawn Truitt Kraft, Salisbury, Maryland (Erika E. Anderson, The Law Offices of 

Erika E. Anderson, Albuquerque, New Mexico, and Jonathan Diener, Mule Creek, New 

Mexico, on the briefs), for Plaintiffs – Appellants. 

Jack Starcher, Appellate Staff Civil Division Attorney (Ethan P. Davis, Acting Assistant 

Attorney General; John C. Anderson, United States Attorney; Scott McIntosh, Appellate 

Staff Civil Division Attorney, with him on the brief), U.S. Department of Justice, 

Washington, DC, for Defendant – Appellee United States of America. 

 

Marcos D. Martinez, Senior Assistant City Attorney, Santa Fe, New Mexico, for 

Defendant – Appellee City of Santa Fe. 

 

Neil R. Bell (Gregory Ara Chakalian on the brief), Office of the New Mexico Attorney 

General, Santa Fe, New Mexico), for Defendant – Appellee Hector H. Balderas. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 30, 2021

Christopher M. Wolpert 

Clerk of Court
2 

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH, 

Circuit Judge. 

_________________________________ 

McHUGH, Circuit Judge. 

_________________________________ 

Plaintiffs/Appellants Santa Fe Alliance for Public Health & Safety, Arthur 

Firstenberg, and Monika Steinhoff (collectively the “Alliance”) advance a bevy of 

claims asserting Section 704 of the Telecommunications Act of 1996 (“TCA”), New 

Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), 

the Amendments to Chapter 27 of the Santa Fe City Code (“Amendments to 

Chapter 27”), and three proclamations by the Santa Fe mayor violate due process, the 

Takings Clause, and the First Amendment. Through its amended complaint, the 

Alliance contends the installation of telecommunications facilities—primarily 

cellular towers and antennas—on public rights-of-way expose its members to 

dangerous levels of radiation. The Alliance further contends these legislative and 

executive acts prevent it from effectively speaking out against the installation of new 

telecommunications facilities. The United States moved to dismiss under Federal 

Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe (“Santa Fe”) 

moved to dismiss under Rule 12(b)(6). The district court concluded that while the 

Alliance pled sufficient facts to establish standing to assert its constitutional claims, 

the Alliance failed to allege facts stating any constitutional claim upon which relief 

could be granted. The district court dismissed the Alliance’s claims as against all 

defendants, including Hector A. Balderas, the New Mexico Attorney General. 
3 

 We affirm the district court’s dismissal of the Alliance’s constitutional claims, 

albeit on partially different grounds. We hold the Alliance lacks standing to raise its 

takings claim and its due process claims not premised on an alleged denial of notice. 

This is because the alleged injuries supporting these claims are not “fairly traceable” 

to the passage of the TCA, WCAIIA, the Amendments to Chapter 27, or the mayoral 

proclamations. We further hold that while the Alliance satisfies the threshold for 

standing as to its First Amendment claims and its procedural due process claim 

premised on the WCAIIA and the Amendments to Chapter 27 denying it notice, the 

district court properly dismissed these claims under Federal Rule of Civil Procedure 

12(b)(6). 

I. BACKGROUND 

A. The Alliance’s Amended Complaint 

 The Alliance’s membership consists of Santa Fe residents concerned about the 

health and environmental effects of radio-frequency emissions from 

telecommunications facilities installed on public rights-of-way. The Alliance alleges 

the radio-frequency emissions contain dangerous levels of radiation. The Alliance 

further alleges that exposure to radio-frequency emissions resulted in its members 

experiencing the following health problems: headaches, nausea, insomnia, tinnitus, 

seizures, cancer, fatigue, neurological issues, respiratory issues, cardiac issues, 

laryngospasms, numbness in extremities, high blood pressure, and internal bleeding. 

As a result of installation of telecommunications facilities and the accompanying 

exposure to radiation, many Alliance members have fled their homes, abandoned 
4 

their businesses, and either moved to remote sections of Santa Fe or taken up 

residence in their vehicles. The increasing presence of telecommunications facilities 

also constrains the ability of Alliance members to travel within Santa Fe city limits 

and to access government buildings and governmental services. The Alliance 

contends the impact from radio-frequency emissions will worsen as 

telecommunications companies upgrade the network in Santa Fe from 4G to 5G and 

as citizens retrofit their residences into smart homes. 

The Alliance attributes some of the rapid growth in telecommunications 

facilities on the public rights-of-way in Santa Fe to a series of federal, state, and local 

legislative enactments, as well as the three proclamations by the mayor. The amended 

complaint alleges the TCA precludes localities from regulating the placement and 

construction of telecommunications facilities based on the “environmental effects” of 

radio-frequency emissions. See 47 U.S.C. §§ 332(c)(7)(B)(iv). The Alliance contends 

the New Mexico Legislature passed the WCAIIA, exempting the installation of new 

telecommunications facilities on public rights-of-way from local land use review. 

Further, the Alliance asserts that Santa Fe, through the Amendments to Chapter 27, 

repealed (1) its land use regulations pertaining to radio-frequency emissions and 

public rights-of-way; and (2) provisions requiring notice to the public before 

installation of a telecommunications facility on a public rights-of-way. Finally, the 

amended complaint alleges the Santa Fe mayor issued three proclamations, 

suspending application of the Santa Fe Land Development Code to requests by 
5 

telecommunications companies to build telecommunications facilities. The Alliance 

attributes the construction of seven short cell towers to the mayoral proclamations. 

The Alliance filed a twenty-two-count amended complaint challenging the 

legislation and the mayoral proclamations. The amended complaint names as 

defendants the United States; Hector Balderas, the New Mexico Attorney General; 

and Santa Fe. 

Regarding the TCA, Count Eighteen raises a Fifth Amendment due process 

claim, arguing Congress lacked the authority to (1) delegate authority to the Federal 

Communications Commission (“FCC”) to be the sole regulatory authority over radiofrequency emission levels; (2) preempt states and localities from adopting their own 

regulations on radio-frequency emission levels; and (3) prohibit states from providing 

legal remedies for injuries from radio-frequency emissions. Meanwhile, Count 

Nineteen contends Section 704 of the TCA, by prohibiting local government officials 

from relying upon any speech regarding the health impacts of radio-frequency 

emissions when reviewing applications for new telecommunications facilities, 

violates the First Amendment because it restricts the ability of the public to speak 

about the health impacts of radio-frequency emissions. Finally, Count Four alleges 

Section 704 of the TCA infringes the Alliance’s First Amendment right to petition 

the government and access the courts.1

 

1

 Additionally, Count Seventeen sought a declaration that the TCA did not 

preclude a locality from considering “health” effects when approving or denying the 

placement of telecommunications facilities because impacts on human health are not 

an “environmental effect” within section 332(c)(7)(B)(iv) of Title 47 of the United 
6 

 The amended complaint advances four claims against the WCAIIA and the 

Amendments to Chapter 27. Count One alleges Fourteenth Amendment due process 

violations based on both provisions eliminating public notice requirements before 

approval of a new telecommunications facility. Count Three raises a Fifth 

Amendment Takings Clause claim, alleging the placement of radio-frequency 

emitting telecommunications facilities on the public rights-of-way rendered homes 

and businesses “uninhabitable and unusable.” App., Vol. I at 50. Count Four alleges 

the WCAIIA and the Amendments to Chapter 27 infringe on the Alliance’s access to 

courts and its ability to assemble and to petition the government, in violation of the 

First Amendment. Finally, Count Twenty asserts the Amendments to Chapter 27 

violate the Alliance’s First Amendment right to free speech because they precluded 

the relevant city boards from regulating telecommunications facilities based on the 

health effects of radio-frequency emissions. 

Lastly, the Alliance raises one federal constitutional claim, Count Two, 

relative to the mayoral proclamations, asserting a Fourteenth Amendment violation of 

procedural and substantive due process. In support of this claim, the Alliance alleges 

Santa Fe, in accord with the proclamations, signed contracts with a 

telecommunications company permitting the installation of telecommunications 

States Code. To the extent Count Seventeen advances a claim for relief rather than a 

mere legal argument supporting the Alliance’s other claims against the TCA, it is not 

a constitutional claim, for it does not invoke any constitutional provision. 
7 

facilities without any notice to the public and that operation of these facilities 

endangers the life, liberty, and property interests of Alliance members.2

 

B. Procedural History 

The United States filed a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(1) and (b)(6), and the City of Santa Fe filed a motion to dismiss 

under Rule 12(b)(6). The New Mexico Attorney General, meanwhile, preserved a 

failure to state a claim defense in its answer to the Alliance’s amended complaint; 

however, the New Mexico Attorney General never filed a Rule 12(b) motion to 

dismiss. 

Nine months after completion of briefing on the motions to dismiss, the district 

court issued a memorandum opinion and order and a final judgment dismissing all 

counts of the amended complaint as against all three defendants.3

 The district court 

2

 Additional counts in the amended complaint raised claims under state law 

and the Santa Fe City Code. After concluding the Alliance failed to state any 

constitutional claims on which relief could be granted, the district court dismissed all 

constitutional claims and declined to assert supplemental jurisdiction. The Alliance 

does not contest the district court’s decision to decline supplemental jurisdiction over 

the non-federal claims. Counts Fifteen and Sixteen, about which the Alliance does 

not advance any specific arguments on appeal, sought general injunctive relief 

against the WCAIIA, the Amendments to Chapter 27, and the mayoral proclamations. 

3

 In issuing its memorandum opinion and order and final judgment, the district 

court committed two procedural errors. First, during the nine months between 

completion of briefing on the motions to dismiss and its ruling, the Alliance moved 

for a preliminary injunction and the parties completed briefing on this motion. The 

district court, however, did not acknowledge the pending preliminary injunction 

motion, neither ruling upon it nor explicitly terminating the Alliance’s motion. 

Second, although the New Mexico Attorney General never moved to dismiss under 

Rule 12(b)(6), the district court acted as though such a motion pended. This is 

problematic where the New Mexico Attorney General lacked any means for seeking 
8 

addressed the United States’ Rule 12(b)(1) motion first, concluding that while the 

Alliance lacked standing to bring claims under any provision of the TCA, it satisfied 

the standing threshold relative to its constitutional claims. Turning to the merits, the 

district court first addressed the Alliance’s Fifth and Fourteenth Amendment due 

process claims—Counts One, Two, and Eighteen. Relative to Santa Fe and the New 

Mexico Attorney General, the district court concluded these actors did not violate the 

Alliance’s procedural or substantive due process rights because the TCA preempted 

state and local officials from considering the health effects of radio-frequency 

emissions in compliance with FCC standards. Next, the district court analyzed the 

Alliance’s Count Three takings claim relative to the WCAIIA and the Amendments 

to Chapter 27, rejecting the claim on the ground that neither New Mexico nor Santa 

Fe physically occupied or regulated the property of any Alliance member. The 

dismissal at this juncture in the proceedings because (1) he waived the right to file a 

Rule 12(b) motion by filing an answer, see Fed. R. Civ. P. 12(b) (a motion asserting a 

Rule 12(b) defense “must be made before pleading if a responsive pleading is 

allowed”); see also 5B Charles Alan Wright & Arthur R. Miller, Fed. Practice and 

Procedure § 1357 at 408 (3d ed. 2004) (“Technically . . . a post-answer Rule 12(b)(6) 

motion is untimely and the cases indicate that some other vehicle, such as a motion 

for judgment on the pleadings or for summary judgment, must be used to challenge 

the plaintiff’s failure to state a claim for relief.”); and (2) a Rule 12(c) motion would 

have been premature because the pleadings were not closed where the other two 

defendants filed Rule 12(b) motions and had not filed answers, see Fed. R. Civ. 

P. 12(c) (“After the pleadings are closed . . . a party may move for judgment on the 

pleadings.” (emphasis added)); see also Gorenc v. Klaassen, No. 18-2403-DDC-JPO, 

2019 WL 2523566, at *2 (D. Kan. Jun. 19, 2019) (collecting authorities standing for 

the proposition that the pleadings are not “closed” until all defendants file an 

answer). Although the Alliance mentions these two issues in its briefing, and we 

agree the district court erred, the Alliance does not seek relief in the form of remand. 
9 

district court then addressed the Alliance’s First Amendment claims, observing that 

Alliance members frequently spoke against new telecommunications facilities and 

holding the Alliance had not stated valid claims because (1) nothing in the TCA, 

WCAIIA, or the Amendments to Chapter 27 regulated speech; and (2) the First 

Amendment does not include the right to have local officials adopt a speaker’s 

preferred position. 

The Alliance timely appealed. The Alliance seeks review of the district court’s 

dismissal of its constitutional claims. The United States, the New Mexico Attorney 

General, and Santa Fe defend the district court’s dismissal of the Alliance’s amended 

complaint, with the United States also reasserting its argument that the Alliance lacks 

standing to bring its claims implicating the TCA. 

II. DISCUSSION 

We begin our analysis with the governing standard of review and an overview 

of the relevant federal, state, and local laws pertaining to the regulation, approval, 

and construction of new telecommunications facilities. Thereafter, we address 

whether the Alliance satisfied the threshold for standing at the motion to dismiss 

stage. Lastly, we turn to whether the claims that survive our standing analysis state a 

claim upon which relief may be granted. 

A. Standard of Review 

Where a district court rules on a Federal Rule of Civil Procedure 12(b)(1) 

motion without taking evidence, we apply a de novo standard of review. Safe Streets 

All. v. Hickenlooper, 859 F.3d 865, 877 (10th Cir. 2017). We also “review a district 
10 

court’s rulings on Article III standing de novo.” Id. at 878 (internal quotation marks 

omitted). 

Similarly, this court reviews de novo a district court’s grant of a motion to 

dismiss under Federal Rule of Civil Procedure 12(b)(6). Albers v. Bd. of Cnty. 

Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014). “[A]ll well-pleaded factual allegations 

in the complaint are accepted as true and viewed in the light most favorable to the 

nonmoving party.” Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006) 

(quotation marks omitted). A complaint must contain “enough facts to state a claim 

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). “A claim has facial plausibility 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, 556 U.S. 662, 678 (2009). “[A] well-pleaded 

complaint may proceed even if it strikes a savvy judge that actual proof of those facts 

is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. 

at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 

B. Relevant Laws Governing New Telecommunications Facilities 

Three tiers of laws—federal, state, and local—regulate the development and 

installation of telecommunications facilities. We describe aspects of each tier, as 

relevant to this appeal. 

1. Telecommunications Act of 1996 

Congress enacted the TCA “to promote competition and higher quality in 

American telecommunications services and to ‘encourage the rapid deployment of 
11 

new telecommunications technologies.’” City of Rancho Palos Verdes v. Abrams, 544 

U.S. 113, 115 (2005) (quoting Telecommunications Act of 1996, Pub. L. 

No. 104-104, purpose statement, 110 Stat. 56, 56 (1996)). To further this goal, the 

TCA struck a balance between preserving “‘the traditional authority of state and local 

governments to regulate the location, construction, and modification’ of wireless 

communications facilities like cell phone towers” and creating uniform standards 

governing new telecommunications facilities. T-Mobile S., LLC v. City of Roswell, 

574 U.S. 293, 300–01 (2015) (quoting City of Rancho Palos Verdes, 544 U.S. 

at 115). While the TCA did not infringe on a state’s or locality’s ability to enforce 

zoning laws governing items such as boundary-line offsets and aesthetics, it did 

impose “five substantive limitations” on the regulation of telecommunications 

facilities. City of Arlington v. FCC, 569 U.S. 290, 294 (2013). 

As highlighted by this appeal, one area of tension regarding the expansion of 

wireless services has been public opposition to exposure to radiation from radiofrequency emissions. Section 332(c)(7)(B)(iv) of Title 47 of the United States Code, 

also referred to as Section 704 of the TCA, addressed the tension and possibility of 

varying standards governing radio-frequency and radiation emissions from 

community to community. The provision states: 

No State or local government or instrumentality thereof may regulate 

the placement, construction, and modification of personal wireless 

service facilities on the basis of the environmental effects of radio 

frequency emissions to the extent that such facilities comply with the 

[FCC’s] regulations concerning such emissions. 
12 

47 U.S.C. § 332(c)(7)(B)(iv) (emphasis added). Consistent with this preference for a 

uniform standard and delegation of authority, the FCC has promulgated regulations 

establishing the maximum permissible level of radio-frequency, radiation emissions 

from telecommunications facilities. 47 C.F.R. § 1.1310. 

 Recognizing that some localities might resist or subvert the limitation placed 

on their ability to regulate radio-frequency emissions, the TCA requires that a 

locality’s denial of a telecommunications company’s request to construct a 

telecommunications facility “be in writing and supported by substantial evidence 

contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). In enforcing this 

requirement, the Supreme Court stated, “[i]n order to determine whether a locality’s 

denial was supported by substantial evidence . . . courts must be able to identify the 

reason or reasons why the locality denied the application.” T-Mobile S., LLC, 574 

U.S. at 300. And where a locality fails to support its denial with substantial evidence, 

the telecommunications company may seek redress in state or federal court. 

47 U.S.C. § 332(c)(7)(B)(v). 

2. Wireless Consumer Advanced Infrastructure Investment Act

Similar to the TCA, the WCAIIA restricts a locality’s ability to regulate some 

telecommunications facilities.4 See N.M. Stat. Ann. § 63-9I-4(B). After enactment of 

4

 No party points us to a decision by a New Mexico court interpreting the 

WCAIIA, and we have not located such a decision. Accordingly, we rely exclusively 

on the WCAIIA’s text to understand its import relative to the regulation of new 

telecommunications facilities. 
13 

the WCAIIA, localities in New Mexico may no longer subject “small wireless 

facilities”—cellular antennas and extensions with volume less than six cubic feet and 

that are attached to and do not extend more than ten feet above an existing utility 

pole or structure in a public right-of-way—to any local “zoning review or approval.” 

N.M. Stat. Ann. § 63-9I-4(C); see also N.M. Stat. Ann. § 63-9I-2(P)(1) (defining 

“small wireless facility”). Rather, unless a telecommunications company proposes to 

place a “small wireless facility” in a “historic district” or a “design district,” a 

locality, while able to impose fees for the permitting process and for access to the 

public right-of-way, lacks the authority to preclude installation of the facility. See 

N.M. Stat. Ann. §§ 63-9I-4(B), (D); see also N.M. Stat. Ann. § 63-9I-3(H). 

3. Amendments to Chapter 27 of the Santa Fe City Code 

In November 2016 and August 2017, the Santa Fe City Council passed 

ordinances amending Chapter 27, the chapter governing telecommunications 

facilities in public rights-of-way. As a result of these amendments, the City Code 

establishes a system whereby telecommunications companies can apply for franchises 

to erect telecommunications facilities on the public rights-of-way. Santa Fe City 

Code § 27-2.4. A “director” reviews and negotiates the franchise applications before 

submitting an application to the “governing body” for adoption. Id. at § 27-2.4(B). 

Once the governing body adopts a franchise agreement, the telecommunications 

company must pay Santa Fe 2% of its gross charges for services provided within 

Santa Fe. Id. at § 27-2.5. 
14 

Regarding land use regulations, the August 2017 amendments established a 

process for creating uniform standards governing new telecommunications facilities 

on public rights-of-ways, phasing out facility-specific land-use-review at public 

meetings: 

the construction of new telecommunications facilities that conform to 

design parameters established from time to time by the land use 

department and are approved for use following a public hearing in the 

historic districts by the historic districts review board or outside the 

historic districts by the planning commission, provided that notice of the 

use of the approved design and of the proposed location is submitted to 

the city prior to commencement of the work and the city approves the 

proposed location of the facilities. 

Id. at § 27-2.19(C). The Santa Fe City Code also recognizes the impact of the TCA, 

stating, “[t]he planning commission may not regulate the placement of 

telecommunications facilities on the basis of the environmental effects of radio 

frequency emissions where such telecommunications facilities comply with 47 C.F.R. 

1.1310 et seq.” Id. at § 27-2.19(E)(3). 

C. Standing5

First, we outline the law governing the threshold inquiry of standing. Then, we 

apply this governing body of law to each type of claim raised by the Alliance. 

5

 The Alliance contends this court cannot consider standing relative to its 

constitutional claims because the district court concluded the Alliance satisfied the 

standing threshold and the United States did not file a cross-appeal. This argument 

ignores well-established, black-letter law. The issue of Article III standing implicates 

federal jurisdiction and is a matter this court must consider sua sponte. Rector v. City 

& Cnty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003). 
15 

1. Governing Law 

We address standing on a claim-by-claim basis; a plaintiff may have standing 

to bring some, but not all, claims raised in a complaint. See Horstkoetter v. Dep’t of 

Pub. Safety, 159 F.3d 1265, 1279 (10th Cir. 1998). The Alliance, as the plaintiff 

invoking the federal court’s jurisdiction, “bears the burden of establishing standing as 

of the time [it] brought this lawsuit and maintaining it thereafter.” Carney v Adams, 

141 S. Ct. 493, 499 (2020). To sustain this burden, a plaintiff must allege it has 

“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of 

the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). 

Our analysis here focuses on the first and second requirements from Spokeo. 

On the first requirement, “[t]o establish injury in fact, a plaintiff must show that [it] 

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). An injury is 

“concrete” if it “actually exist[s]” and is “‘real’” rather than “‘abstract.’” Id. (quoting 

Webster’s Third New International Dictionary 472 (1971)). “For an injury to be 

‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id.

(quoting Lujan, 504 U.S. at 560). An injury is “imminent” if it is “certainly 

impending.” Clapper v Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (first quoting 

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010), then quoting 

Lujan, 504 U.S. at 565 n.2). 
16 

On the second requirement, to show that an injury is “fairly traceable” to the 

challenged conduct, a plaintiff must allege “a substantial likelihood that the 

defendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v. Gandy, 

416 F.3d 1149, 1156 (10th Cir. 2005). As part of this showing, a plaintiff must 

establish that its injury was “not the result of the independent action of some third 

party not before the court.” Id. (quoting Lujan, 504 U.S. at 560). This showing, 

however, does not require a plaintiff to establish that the defendant was the proximate 

cause of its injury. Id. Nor does it require a showing that a “defendant’s actions are 

the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 169 

(1997). Rather, at the motion to dismiss stage, a plaintiff can satisfy the “fairly 

traceable” requirement by advancing allegations which, if proven, allow for the 

conclusion that the challenged conduct is a “but for” cause of the injury. Petrella v. 

Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012) (citing Duke Power Co. v. 

Carolina Env’t Study Grp., Inc., 438 U.S. 59, 74–78 (1978)). 

2. Application 

a. Takings claim 

 “The Takings Clause of the Fifth Amendment, made applicable to the States 

through the Fourteenth, provides that private property shall not be taken for public 

use, without just compensation.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 

(2005) (citation and quotation marks omitted). In Count Three, the Alliance contends 

the WCAIIA and the Amendments to Chapter 27, by facilitating the placement of 
17 

telecommunications facilities on the public rights-of-way, effect a taking of its 

members’ homes and businesses. Specifically, the Alliance alleged that its members: 

are already refugees from cell towers and antennas and have already lost 

previous homes and businesses due to their proximity. The award of 

franchises by the City, and their exemption from land use regulations by 

the State, for the placement of wireless telecommunications facilities on 

the sidewalk directly in front of Plaintiffs’ homes and businesses will 

render their present homes and businesses similarly uninhabitable and 

unusable and is an unlawful confiscation of property without 

compensation. 

App., Vol. I at 50. 

 As an initial matter, to the extent the Alliance seeks redress for alleged future 

losses of homes and business, the taking had not occurred at the time the Alliance 

filed its amended complaint. Thus, any injury is speculative. And even if the 

placement of telecommunications facilities on public rights-of way could constitute a 

taking of adjoining private property, no just compensation was due to any particular 

individual for a yet-to-occur taking. See Miller v. Campbell Cnty., 945 F.2d 348, 354 

n.9 (10th Cir. 1991) (concluding taking did not occur when county passed resolution 

that would lead to taking of home but “rather the taking occurred when the plaintiffs 

were actually required permanently to vacate their premises”); see also SK Fin. SA v. 

La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1278 (10th Cir. 1997) (takings 

claim not ripe until denial of property right is final). Therefore, we lack jurisdiction 

to consider Count Three relative to future takings. See Nat’l Park Hosp. Ass’n v. 

Dep’t of Interior, 538 U.S. 803, 808 (2003) (“The ripeness doctrine is ‘drawn both 

from Article III limitations on judicial power and from prudential reasons for 
18 

refusing to exercise jurisdiction.’” (quoting Reno v. Catholic Soc. Servs., Inc., 509 

U.S. 43, 57 n.18 (1993))). 

 Turning to the aspect of Count Three based on Alliance members already 

leaving their homes and business, here the Alliance alleges a specific injury that 

satisfies the first requirement for standing stated in Spokeo. However, the Alliance 

has not satisfied the second Spokeo requirement—that the injury is “fairly traceable” 

to the WCAIIA and the Amendments to Chapter 27. While these two legislative acts 

made it slightly easier for telecommunications companies to obtain approval to 

construct new telecommunications facilities, the Alliance fails to allege facts capable 

of showing that “but for” these two legislative acts Santa Fe would not have 

approved the construction of the telecommunications facilities at issue. Notably, the 

Alliance does not allege members of the Santa Fe boards in charge of land use and 

zoning/planning were prepared to deny approval for new telecommunications 

facilities in the absence of the adoption of the WCAIIA and the Amendments to 

Chapter 27. Put another way, the allegations in the amended complaint do not create 

a substantial likelihood that construction of the telecommunications facilities causing 

Alliance members to leave their homes and businesses would not have occurred but 

for passage of the WCAIIA and the Amendments to Chapter 27. Therefore, we hold 

the Alliance failed to allege facts capable of satisfying the second requirement for 

standing under Spokeo. 
19 

b. Due process claims

 Count One alleges the WCAIIA and the Amendments to Chapter 27 violate 

procedural and substantive due process. The substantive due process aspect of this 

claim hinges on the Alliance’s contention that newly constructed telecommunications 

facilities present a threat to the health, life, and property of Alliance members. For 

the same reasons the Alliance’s takings claim based on completed takings fails to 

satisfy the second Spokeo requirement for standing, so too does the substantive due 

process aspect of Count One. Simply put, no allegation in the amended complaint 

supports the inference Santa Fe would not have approved new telecommunications 

facilities absent passage of the WCAIIA and the Amendments to Chapter 27. 

 We, however, reach a different conclusion as to the procedural due process 

aspect of Count One. The Alliance alleged that, as a result of these legislative acts, its 

members no longer receive notice prior to the approval of a specific 

telecommunications facility. This in turn, the Alliance alleges, deprives its members 

of an opportunity to be heard in opposition to further development of 

telecommunications facilities. While we discuss in Section III(D)(1) whether the Due 

Process Clause entitles the Alliance to the notice and opportunity to be heard it seeks, 

there can be no question the WCAIIA and the Amendments to Chapter 27 have 

directly altered the process used by Santa Fe to approve new telecommunications 

facilities. Specifically, the WCAIIA limits the ability of localities to regulate “small 

wireless facilities” in the public rights-of-way. N.M. Stat. Ann. § 63-9I-4(B), (C); see 

also N.M. Stat. Ann. §63-9I-3(H). And the Amendments to Chapter 27 altered Santa 
20 

Fe’s process for approving telecommunications facilities—creating a streamlined 

process where Santa Fe peremptorily adopts guidelines for telecommunications 

facilities rather than reviewing individual applications for the construction of new 

facilities at meetings open to the public. Santa Fe City Code § 27-2.19(C). Therefore, 

the Alliance has satisfied the standing requirements relative to its Count One claim 

that the WCAIIA and the Amendments to Chapter 27 deprive its members of notice 

and an opportunity to be heard. 

Turning to Count Eighteen, there the Alliance raises a procedural and 

substantive due process claim against the TCA. The Alliance alleges the TCA, by 

giving authority to the FCC to regulate radio-frequency emissions, preempts state and 

local regulation of those emissions, as well as the ability of state and local authorities 

to provide legal remedies for injuries attributable to radio-frequency, radiation 

emissions. We hold the Alliance lacks standing to advance this claim. The claim is 

contingent on New Mexico and/or Santa Fe, in the absence of the TCA, regulating 

radio-frequency emissions to a greater degree than the FCC does through 47 C.F.R. 

§ 1.1310. But no allegations in the amended complaint make such an inference 

plausible. In fact, the amended complaint contains allegations suggesting New 

Mexico, although possessing knowledge about the dangers of radio-frequency 

emissions prior to passage of the TCA, did not enact measures to protect its citizens 

from radiation emanating from telecommunications facilities. See App., Vol. I at 13 

(alleging that New Mexico has known for forty years that radio-frequency emissions 

are injurious). Accordingly, the amended complaint does not support the inference 
21 

that but for the TCA, Alliance members could successfully bring suit for injuries they 

attribute to radio-frequency emissions.6

 Finally, in Count Two, the Alliance contends that three mayoral proclamations 

violated procedural and substantive due process by allowing for the construction of 

new telecommunications facilities without notice to the public. As background 

specific only to this count, in November 2017, the mayor declared an “emergency” in 

Santa Fe based on “insufficient telecommunications capacity.” The proclamation 

authorized Santa Fe officials to “work with Verizon Wireless to install temporary 

and/or mobile wireless telecommunications facilities on City property pending 

review and approval of fixed wireless facilities within the City.” App., Vol. I at 138. 

In December 2017, the mayor issued a second proclamation and a third proclamation, 

which are nearly identical to the November 2017 proclamation. 

6

 The concurrence concludes we set “too high a barrier for most plaintiffs to 

ever satisfy” and we “insulate the federal government’s efforts to materially shape 

the decisions of local governments.” Concurrence Op. at 2. We are not unsympathetic 

to the concurrence’s concern about shielding federal legislation from review where a 

local government, rather than the federal government, is the final actor. But we do 

not review the amended complaint in a vacuum where local governments have always 

been constrained by the TCA. Not only, as the concurrence suggests, could the 

Alliance have alleged that local decision makers were inclined to reject applications 

for new telecommunications facilities absent the TCA but the Alliance also could 

have alleged instances, pre-TCA, where local officials, either in Santa Fe or 

elsewhere, rejected applications for new telecommunications facilities based on 

health effects. The amended complaint, however, alleges neither. Thus, we are left to 

speculate whether any local board would conclude the harms from the health effects 

alleged by the Alliance outweigh a community’s needs for and the benefits stemming 

from upgraded wireless communication services. 
22 

We conclude the Alliance lacks standing to advance its substantive due 

process claim based on the mayoral proclamations. Although the mayoral 

proclamations may have expedited the construction of certain telecommunications 

facilities, there is nothing in the amended complaint allowing for the inference that 

the same or similar facilities would not have been constructed but for the mayoral 

proclamations. Rather, the amended complaint repeatedly contends 

telecommunications facilities will be virtually everywhere, at least in urban settings, 

as the country transforms to a 5G network. The amended complaint goes so far as to 

allege that each wireless carrier operating in an area plans to install cellular towers 

“every 100 meters in every urban area in the world.” Id. at 14. Thus, it cannot be said 

that the mayoral proclamations are the “but for” cause of the construction of new 

telecommunications facilities and the Alliance’s members’ accompanying exposure 

to radio-frequency emissions. 

We also conclude the Alliance lacks standing to advance its procedural due 

process claim based on the mayoral proclamations. On this claim, we hold the 

Alliance fails to allege an injury fairly traceable to the mayoral proclamation. As 

alleged in Count One, the August 2017 Amendments to Chapter 27 eliminated notice 

and hearing requirements for the approval of specific new telecommunications 

facilities. Therefore, the mayoral proclamations could not have produced any further 

injury regarding the elimination of notice and hearing requirements. In this sense, the 

Alliance cannot allege either an injury from the mayoral proclamations or that any 

lack of notice is fairly traceable to the proclamations. 
23 

 c. First Amendment claims

 In Count Four, the Alliance alleges the TCA, the WCAIIA, and the 

Amendments to Chapter 27 all infringe on its members’ First Amendment right to 

petition the government by foreclosing the ability of local officials to consider their 

arguments about the health effects of exposure to radio-frequency emissions. Count 

Nineteen alleges the TCA infringes the First Amendment free speech rights of 

Alliance members because local officials have relied on the TCA to ignore and reject 

health-effect-related speech against new telecommunications facilities. Finally, in 

Count Twenty the Alliance alleges the Amendments to Chapter 27 violate its 

members’ freedom of speech rights because the Amendments formally adopt the 

TCA’s delegation of regulation of radio-frequency emissions to the FCC. 

 Although we address whether any of these counts state a claim upon which 

relief can be granted in Sections III(D)(3), (4), we conclude here that the Alliance 

advanced sufficient allegations to satisfy the standing requirements. Specifically, the 

Alliance cites to particular limitations in both the TCA and the Amendments to 

Chapter 27 precluding local officials from adopting the Alliance’s preferred position 

on radio-frequency emissions. Thus, if a party could advance a First Amendment 

claim based on government officials not adopting a particular spoken position, then 

the Alliance alleged an injury fairly traceable to the aforementioned legislative acts, 

an injury which this court could remedy by striking down the acts. 
24 

3. Summary 

In summation, we hold the Alliance failed to allege facts satisfying the 

standing requirements as to its (1) Count Three takings claim; (2) Count One 

substantive due process claim; (3) Count Eighteen procedural and substantive due 

process claims; and (4) Count Two procedural and substantive due process claims.7

We, however, hold the Alliance has, for purposes of the motion to dismiss stage, 

satisfied the standing requirements as to its (1) Count One, procedural due process 

claim; (2) Count Four, First Amendment, right to petition claim; (3) Count Nineteen, 

First Amendment, free speech claim; and (4) Count Twenty, First Amendment, free 

speech claim. 

D. Rule 12(b)(6) Analysis 

We analyze each of the claims surviving our standing inquiry under Federal 

Rule of Civil Procedure 12(b)(6), concluding the Alliance has not stated any claim upon 

which relief may be granted. 

1. Count One Procedural Due Process Claim

 As a refresher, in Count One, the Alliance alleges the WCAIIA and the 

Amendments to Chapter 27 violate its members’ procedural due process rights by 

7

 Where we affirm the dismissal of these claims for lack of standing rather than 

for failure to state a claim, the dismissal must transform from a dismissal with 

prejudice to a dismissal without prejudice. See Brereton v. Bountiful City Corp., 434 

F.3d 1213, 1216 (10th Cir. 2006) (“Since standing is a jurisdictional mandate, a 

dismissal with prejudice for lack of standing is inappropriate, and should be corrected 

to a dismissal without prejudice.”). And it is in the purview of the district court to 

alter its judgment to reflect this change such that we remand to the district court for 

that limited purpose. See id. at 1219–20. 
25 

eliminating notice and hearing requirements prior to approval of new telecommunications 

facilities. Both the WCAIIA and the Amendments to Chapter 27 involve local control 

over zoning and land use. Moreover, the WCAIIA and the Amendments to Chapter 27 

are also legislative acts. See Onyx Props. LLC v. Bd. of Cnty. Comm’rs of Elbert Cnty., 

838 F.3d 1039, 1045–46 (10th Cir. 2016) (stating that “the adoption of a general zoning 

law is a legislative act” and “adoption of a general zoning ordinance is legislative 

action”). Long ago, “the Supreme Court held that constitutional procedural due process 

does not govern the enactment of legislation.” Id. (citing Bi-Metallic Inv. Co. v. State Bd. 

of Equalization, 239 U.S. 441, 445 (1915)). This is sufficient to foreclose the 

Alliance’s Count One procedural due process claim, and we affirm the district court’s 

Rule 12(b)(6) dismissal of the claim.8

 

8

 Even if the Amendments to Chapter 27 were not legislative acts and could be 

subjected to a procedural due process challenge, the Amendments merely streamlined 

the procedures for approving new telecommunications facilities by enacting a system 

whereby Santa Fe adopted preset requirements governing new telecommunications 

facilities rather than approving such facilities one at a time. Santa Fe City Code 

§ 27-2.19(C). Thus, even after the Amendments, Alliance members retained the 

ability to speak against new telecommunications facilities at meetings adopting or 

modifying the preset regulations governing those facilities. See Onyx Props. LLC v. 

Bd. of Cnty. Comm’rs of Elbert Cnty., 838 F.3d 1039, 1045–47 (10th Cir. 2016) 

(observing due process does not necessitate individual hearings on enforcement of 

legislative acts, including municipal-wide zoning regulations); see also Heffron v. 

Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981) (“[T]he First 

Amendment does not guarantee the right to communicate one’s views at all times and 

places or in any manner that may be desired.”). Accordingly, while the Amendments 

may have decreased the number of hearings on the matter, they did not eliminate all 

hearings on the regulation of new telecommunications facilities. 
26 

2. Count Four Right to Petition Claim

 In Count Four, the Alliance alleges the TCA, the WCAIIA, and the 

Amendments to Chapter 27 infringe its members’ First Amendment right to petition 

the government because local officials cannot adopt their position in opposition to 

radio-frequency emissions and because its members cannot prevail in a legal claim 

seeking compensation for injuries allegedly attributable to radio-frequency 

emissions. In pertinent part, the First Amendment states: “Congress shall make no 

law . . . abridging . . . the right of the people peaceably to assemble, and to petition 

the Government for a redress of grievances.” U.S. Const., amend. I. “The right to 

petition allows citizens to express their ideas, hopes, and concerns to their 

government and their elected representatives. . . .” Borough of Duryea v. Guarnieri, 

564 U.S. 379, 388 (2011). To further this goal, the right to petition “extends to all 

departments of the Government” and includes the “right of access to the courts.” Cal. 

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). But “the text of 

the First Amendment [does not] speak in terms of successful petitioning—it speaks 

simply of ‘the right of the people . . . to petition the Government for a redress of 

grievances.’” BE & K Const. Co. v. NLRB, 536 U.S. 516, 532 (2002) (omission in 

original) (quoting U.S. Const. amend. I). 

 To be sure, the Alliance alleges the relevant legislative acts prevent its 

members from succeeding on any of its efforts to petition the Santa Fe government 

regarding the health effects of radio-frequency emissions, but the amended complaint 

never identifies a provision of the TCA, WCAIIA, or the Amendments to Chapter 27 
27 

precluding any individual from, or penalizing any individual for, petitioning the 

government regarding radio-frequency emissions. Nor could the Alliance identify any 

such provision, as none exists. And the case law uniformly rejects the contention that 

the First Amendment guarantees any success when petitioning, rendering the 

Alliance’s Count Four First Amendment claim frivolous. See CSMN Invs., LLC v. 

Cordillera Metro. Dist., 956 F.3d 1276, 1285 (10th Cir. 2020) (“In fact, the framers 

recognized this in the First Amendment’s text: ‘[T]he text of the First Amendment 

[does not] speak in terms of successful petitioning—it speaks simply of “the right of 

the people . . . to petition the Government for redress of grievances.”’” (quoting BE 

& K, 536 U.S. at 532 (quoting U.S. Const. amend. I))). Accordingly, we affirm the 

district court’s Rule 12(b)(6) dismissal of this claim. 

3. Counts Nineteen and Twenty First Amendment Free Speech Claims

 In Count Nineteen, the Alliance alleges the TCA restricts its members’ First 

Amendment right to free speech. And Count Twenty alleges the Amendments to 

Chapter 27 likewise restrict its members’ First Amendment right to free speech. 

Under the First Amendment, “Congress shall make no law . . . abridging the freedom 

of speech.”9

 U.S. Const. amend. I. Simply put, nothing in the TCA or the 

Amendments to Chapter 27 punishes, restricts, or prohibits any individual from 

9

 Through the Fourteenth Amendment, the prohibition on government 

abridging the right to free speech has been incorporated to cover state and local 

governmental action. See Schneider v. State of N.J., Town of Irvington, 308 U.S. 147, 

160 (1939). 
28 

speaking against radio-frequency emissions.10 Accordingly, Counts Nineteen and 

Twenty of the amended complaint do not advance plausible claims, and we affirm the 

district court’s Rule 12(b)(6) dismissal of them. 

III. CONCLUSION

 We affirm the district court’s dismissal of the Count One procedural due 

process claim and the claims advanced in Counts Four, Nineteen, and Twenty 

because, while the Alliance satisfied standing requirements at the motion to dismiss 

stage, none of the claims allege facts upon which relief may be granted. We further 

10 The Alliance argues it fears that if its members speak out against radiofrequency emissions at a hearing on a new telecommunications facility and Santa Fe 

does not approve construction of the new facility, a court, in resolving a suit by a 

telecommunications company, might attribute the denial of approval to public 

comments about the health effects of radio-frequency emissions. This argument is 

fallacious for three reasons. First, this asserted fear has not inhibited Alliance 

members from speaking at public hearings, for the amended complaint alleges 

Alliance members “have participated in every approval process and have testified to 

their injuries and losses at every public hearing for every proposed 

telecommunications ordinance and every proposed telecommunications facility in 

Santa Fe from 2005 until the present day.” App., Vol. I at 36. Second, as the Alliance 

contends in other counts of its amended complaint, the Amendments to Chapter 27 

eliminated hearings on specific new telecommunications facilities. Third, under the 

TCA and applicable Supreme Court precedent, any court reviewing a locality’s denial 

of approval for a new telecommunications facility has no need to attribute the denial 

to particular public comments never adopted by the local officials. Rather, a 

locality’s mere failure to document its reasons for denying an application to build a 

telecommunications facility entitles the telecommunications company to relief. See 

42 U.S.C. § 332(c)(7)(B)(iii) (requiring that the denial of an application “be in 

writing and supported by substantial evidence contained in a written record”); see 

also T-Mobile S., LLC v. City of Roswell, 574 U.S. 293, 300 (2015) (“In order to 

determine whether a locality’s denial was supported by substantial evidence . . . 

courts must be able to identify the reason or reasons why the locality denied the 

application.”). 
29 

affirm the district court’s dismissal of the Count One substantive due process claim 

and the claims in Counts Two, Three, and Eighteen on the alternative ground that the 

Alliance failed to satisfy the threshold standing requirements to advance these claims. 

We remand to the district court for the limited purpose of modifying its judgment to 

reflect that these claims are dismissed without prejudice. 
No. 20-2066, Santa Fe Alliance v. City of Santa Fe 

LUCERO, J., concurring 

 Though I agree with the bulk of the majority’s analysis, I write separately to note 

my respectful disagreement concerning the Alliance’s standing to raise claims against the 

TCA. Because the TCA limits the decision-making discretion of state and local 

policymakers in a manner substantially likely to have produced the decisions and policies 

that caused the Alliance’s alleged injuries, I would hold that the Alliance has standing to 

challenge the statute. The majority’s holding to the contrary effectively allows the 

federal government to evade review by restricting the discretion of state and local 

officials and then claiming that the ultimate decision was the officials’ alone. Rather than 

create such a loophole, I would affirm on the basis of sovereign immunity. 

 As the majority explains, the TCA prohibits state and local governments from 

regulating telecommunications facilities “on the basis of the environmental effects of 

radio frequency emissions.” 47 U.S.C. § 332(c)(7)(B)(iv). Included within the category 

of “environmental effects” are harms to human health, such as the cancers and seizures 

that the Alliance asserts its members have suffered due to radio frequency emissions. 

Because of the TCA prohibition, the regulations challenged by the Alliance could not 

have been otherwise on the basis of the harms the Alliance alleges. 

 Though the TCA forecloses considering these significant environmental effects,1

the majority sees no reason to believe that state and local decision-makers would have 

1

 We assume these effects are real at the motion to dismiss stage. See Wasatch Equality 

v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016).
2 

paid them any mind in the absence of the TCA’s fetters. The majority concludes that 

because there are “no allegations in the amended complaint [that] make such an inference 

plausible,” the Alliance lacks standing to challenge the TCA. 

 To establish standing, a plaintiff must allege “a substantial likelihood that the 

defendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v. Gandy, 416 

F.3d 1149, 1156 (10th Cir. 2005). The Alliance meets this burden. It is substantially 

likely that if radio frequency emissions cause widespread and severe environmental 

harms, state and local decision-makers would regulate telecommunications facilities 

differently if not for the TCA. To hold otherwise because the Alliance cannot point to 

evidence from New Mexico or Santa Fe officials affirmatively declaring they would 

hypothetically regulate differently in the absence of the TCA is too high a barrier for 

most plaintiffs to ever satisfy. It also creates a loophole by which the federal government 

can significantly constrain local governmental decision-making, then escape judicial 

review of those constraints by arguing the ultimate decision was the local government’s 

and may have been the same even without the constraints. We should not insulate the 

federal government’s efforts to materially shape the decisions of local governments from 

harms that those efforts plausibly bring about. 

 Though I would hold that the Alliance has standing to bring claims based on the 

TCA, I would also hold that those claims fail due to federal sovereign immunity. 

Sovereign immunity is a general shield for suits brought against the United States, its 

agencies, and its officers. No one may “pursue a suit against the Federal Government 

absent a congressional waiver of immunity.” Wyoming v. United States, 279 F.3d 1214, 
3 

1225 (10th Cir. 2002). In the only potentially relevant exception to that broad shield, 

Congress waived sovereign immunity for “[a]n action in a court of the United States 

seeking relief other than money damages and stating a claim that an agency or an officer 

or employee thereof acted or failed to act in an official capacity or under color of legal 

authority.” 5 U.S.C. § 702 (emphasis added). Nowhere in the Alliance’s claims is it 

alleged that any agency or officer of the United States acted or failed to act. The named 

federal defendant is the United States in its entirety. The TCA is enforced by the FCC, 

but there is no allegation that the FCC played any role in the events that led to this suit. 

Under the plain text of § 702, the Alliance’s claims do not fit within that waiver of 

sovereign immunity. See Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 187 (D.C. 

Cir. 2006) (“[T]he [statute] . . . refer[s] to a claim against an ‘agency’ and hence waives 

immunity only when the defendant falls within that category . . . .”). 

 Because I would affirm the district court’s dismissal of the TCA-based claims on 

grounds other than those relied on by the majority, I respectfully concur.