PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ SANTA FE ALLIANCE FOR PUBLIC HEALTH AND SAFETY; ARTHUR FIRSTENBERG; MO NIKA 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, Maryla nd (Erika E. Anderson, The Law Offices of Erika E. Anderson, Albuquerqu e, 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 C ity Attorney, Santa Fe, New Mexico, for Defendant – Appellee City of Santa Fe. Neil R. Bell (Gregory Ara Chakalian on the br ief), Office of the New Mexico Attorney General, Santa Fe, New Mexico), for Defe ndant – Appellee Hector H. Balderas.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### March 30, 2021 Christopher M. Wolpert Clerk of Court2 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 (collec tively the “Alliance”) advance a bevy of claims asserting Section 704 of the Tel ecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced In frastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Sa nta Fe City Code (“Amendments to Chapter 27”), and three procla mations 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 te lecommunications fac ilities—primarily cellular towers and antennas—on public rights-of-way expose its members to dangerous levels of radiation. The Allian ce further contends th ese legislative and executive acts prevent it from effectively speaking out ag ainst the installation of new telecommunications faciliti es. 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 asse rt its constitutional claims, the Alliance failed to allege facts stating any constituti onal claim upon which relief could be granted. The distri ct court dismissed the Allian ce’s claims as against all defendants, including Hector A. Balderas , the New Mexico Attorney General.3 We affirm the district court’s dismissa l of the Alliance’s c onstitutional claims, albeit on partially different grounds. We hold the Alliance lacks standing to raise its takings claim and its due pro cess claims not premised on an alleged denial of notice. This is because the alleged injuries suppor ting 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 satisfie s the threshold for standing as to its First Amendment claims and its procedural due process claim premised on the WCAIIA and the Amendmen ts to Chapter 27 denying it notice, the district court properly dismis sed these claims under Federa l 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 A lliance alleges the radio-frequency emissions contain dangerous levels of radiation. The Alliance further alleges that exposure to radio-fre quency emissions resulted in its members experiencing the following health problems: headaches, nausea, insomnia, tinnitus, seizures, cancer, fatigue, ne urological issues, respirator y issues, cardiac issues, laryngospasms, numbness in extremities, high blood pressure, and internal bleeding. As a result of installation of telecommu nications facilities a nd the accompanying exposure to radiation, many Alliance memb ers have fled their homes, abandoned4 their businesses, and either moved to re mote sections of Sa nta Fe or taken up residence in their vehicles. The increasi ng presence of telecomm unications facilities also constrains the ability of Alliance member s 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 ne twork in Santa Fe from 4G to 5G and as citizens retrofit their re sidences into smart homes. The Alliance attributes so me of the rapid growth in telecommunications facilities on the public rights-of-w ay in Santa Fe to a series of federal, state, and local legislative enactments, as we ll as the three proclamati ons by the mayor. The amended complaint alleges the TCA precludes local ities from regulating the placement and construction of telecommunicat ions 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 WC AIIA, exempting the installation of new telecommunications facilities on public ri ghts-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 re gulations pertaining to ra dio-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 by5 telecommunications companies to build te lecommunications fac ilities. 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 proclamati ons. The amended complaint names as defendants the United States; Hector Balder as, the New Mexico Attorney General; and Santa Fe. Regarding the TCA, Count Eighteen ra ises a Fifth Amendment due process claim, arguing Congress lacked the authority to (1) delegate authority to the Federal Communications Commission (“FCC”) to be th e sole regulatory authority over radiofrequency emission levels; (2) preempt states and locali ties from adopting their own regulations on radio-frequency emission levels ; and (3) prohibit states from providing legal remedies for injuries from radi o-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 tel ecommunications facilities, violates the First Amendment because it re stricts the ability of the public to speak about the health impacts of radio-frequenc y emissions. Finally, Count Four alleges Section 704 of the TCA infringes the Alli ance’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 United6 The amended complaint advances fourclaims against the WCAIIA and the Amendments to Chapter 27. Count One al leges Fourteenth Amendment due process violations based on both pr ovisions eliminating public notice requirements before approval of a new telecommunications facility. Count Three raises a Fifth Amendment Takings Clause claim, alle ging the placement of radio-frequency emitting telecommunications facilities on th e 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 Chap ter 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 Amendmen ts to Chapter 27 violate the Alliance’s First Amendment right to free sp eech because they precluded the relevant city boards from regulating telecommunications fa cilities based on the health effects of radi o-frequency emissions. Lastly, the Alliance raises one federa l constitutional claim, Count Two, relative to the mayoral procla mations, 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 proc lamations, signed contracts with a telecommunications company permitting th e 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 consti tutional provision.7 facilities without any notice to the public and that opera tion of these facilities endangers the life, liberty, and prope rty 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 A ttorney General, meanwhile, preserved a failure to state a claim defe nse in its answer to the Alliance’s amended complaint; however, the New Mexico Attorney Genera l never filed a Rule 12(b) motion to dismiss. Nine months after completi on of briefing on the motions to dismiss, the district court issued a memorandum opinion and orde r 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 comp laint raised claims under state law and the Santa Fe City Code. After conc luding the Alliance fa iled to state any constitutional claims on which relief could be granted, the district court dismissed all constitutional claims and dec lined to assert supplementa l jurisdiction. The Alliance does not contest the district court’s decision to decline supplemental jurisdiction over the non-federal claims. Counts Fifteen a nd Sixteen, about which the Alliance does not advance any specific arguments on ap peal, sought genera l injunctive relief against the WCAIIA, the Amen dments 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. Fi rst, during the nine months between completion of briefing on the motions to di smiss and its ruling, the Alliance moved for a preliminary injunction and the partie s completed briefing on this motion. The district court, however, did not acknowledge the pe nding preliminary injunction motion, neither ruling upon it nor explicitly termina ting the Alliance’s motion. Second, although the New Mexico Attorn ey General never moved to dismiss under Rule 12(b)(6), the district court acted as though such a moti on pended. This is problematic where the New Mexico Attorney General lacked any means for seeking8 addressed the United States’ Rule 12(b)(1) motion first, concluding that while the Alliance lacked standing to bring claims unde r any provision of the TCA, it satisfied the standing threshold relative to its const itutional claims. Turni ng to the merits, the district court first addres sed the Alliance’s Fifth and Fourteenth Amendment due process claims—Counts One, Two, and Ei ghteen. Relative to Santa Fe and the New Mexico Attorney General, the district cour t concluded these actors did not violate the Alliance’s procedural or substantive due process rights because the TCA preempted state and local officials from consideri ng 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 WC AIIA and the Amendments to Chapter 27, rejecting the claim on the ground that neither New Mexico nor Santa Fe physically occupied or regulated th e 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 befo re pleading if a re sponsive pleading is allowed”); see also 5B Charles Alan Wright & Arthur R. Miller, Fed. Practice and Procedure § 1357 at 408 (3d ed. 2004) (“Technically . . . a pos t-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 stat e 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) moti ons 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 Allian ce mentions these two issues in its briefing, and we agree the district court erred, the Alliance does not seek reli ef in the form of remand.9 district court then addressed the Allianc e’s First Amendment cl aims, observing that Alliance members frequently spoke agains t new telecommunicati ons facilities and holding the Alliance had not stated valid claims because (1) nothing in the TCA, WCAIIA, or the Amendments to Chapte r 27 regulated speech; and (2) the First Amendment does not include the right to have local official s adopt a speaker’s preferred position. The Alliance timely appealed . The Alliance seeks review of the district court’s dismissal of its constitutional claims. Th e United States, the Ne w Mexico Attorney General, and Santa Fe defend the district court’s dismissa l of the Alliance’s amended complaint, with the United St ates also reasserting its ar gument that the Alliance lacks standing to bring its claims implicating the TCA.
II. DISCUSSION We begin our analysis with the governi ng standard of review and an overview of the relevant federal, stat e, and local laws pertaining to the regulation, approval, and construction of new te lecommunications facilities. Thereafter, we address whether the Alliance satisfie d the threshold for standing at the motion to dismiss stage. Lastly, we turn to wh ether 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 Fede ral Rule of Civil Procedure 12(b)(1) motion without taking evidence, we a pply a de novo standard of review. Safe Streets All. v. Hickenlooper , 859 F.3d 865, 877 (1 0th Cir. 2017). We also “review a district10 court’s rulings on Article III standing de novo.” Id. at 878 (internal quotation marks omitted). Similarly, this court revi ews de novo a district cour t’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 a ccepted as true and viewed in th e 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 “e nough 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 pl ausibility when the plaintiff pleads factual content that allows the court to draw th e reasonable inference that th e 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 Ne w Telecommunications Facilities Three tiers of laws—federal, state, and local—regulate the development and installation of telecommunicatio ns facilities. We describe aspects of each tier, as relevant to this appeal.
1. Telecommunications Act of 1996 Congress enacted the TCA “to promot e competition and higher quality in American telecommunications services and to ‘encourage the rapid deployment of11 new telecommunications technologies.’” City of Rancho Palo s 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 “‘th e traditional authority of state and local governments to regulate the location, cons truction, and modificat ion’ of wireless communications facilities like cell phone to wers” and creating uniform standards governing new telecommu nications 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 bounda ry-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 regardi ng the expansion of wireless services has been public opposition to e xposure to radiation from radiofrequency emissions. Section 33 2(c)(7)(B)(iv) of Title 47 of the United States Code, also referred to as Section 704 of the TC A, addressed the tension and possibility of varying standards governing radio-fre quency and radiation emissions from community to community. The provision states: No State or local government or in strumentality thereof may regulate the placement, construction, and m odification of personal wireless service facilities on the basis of the environmental ef fects of radio frequency emissions to the extent that such fa cilities comply with the [FCC’s] regulations concerning such emissions.12 47 U.S.C. § 332(c)(7)(B)(iv) (e mphasis added). Consistent with this pr eference for a uniform standard and delegation of author ity, the FCC has promulgated regulations establishing the maximum perm issible level of radio-fre quency, radiation emissions from telecommunications facil ities. 47 C.F.R. § 1.1310. Recognizing that some localities might resist or subvert the limitation placed on their ability to regulate radio-freque ncy emissions, the TCA requires that a locality’s denial of a telecommunicati ons company’s request to construct a telecommunications facility “be in writing and suppor ted 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 loca lity denied the application.” T-Mobile S., LLC , 574 U.S. at 300. And where a locality fails to su pport 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 WC AIIA 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 d ecision. Accordingly, we rely exclusively on the WCAIIA’s text to understand its im port relative to the regulation of new telecommunications facilities.13 the WCAIIA, localities in New Mexico may no longer subject “small wireless facilities”—cellula r antennas and extensions with volu me less than six cubic feet and that are attached to and do not extend more than ten fe et above an existing utility pole or structure in a public right-of-way—t o 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 telecommunica tions company proposes to place a “small wireless facility ” in a “historic district” or a “design district,” a locality, while able to impose fees for th e permitting process a nd for access to the public right-of-way, lacks th e authority to preclude inst allation 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, th e Santa Fe City Council passed ordinances amending Chapter 27, the chapter governing telecommunications facilities in public rights-of-way. As a re sult of these amendments, the City Code establishes a system where by telecommunications companie s can apply for franchises to erect telecommunications facilities on the public right s-of-way. Santa Fe City Code § 27-2.4. A “director” reviews and nego tiates 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 franchis e agreement, the telecommunications company must pay Santa Fe 2% of its gr oss charges for servic es provided within
Santa Fe. Id. at § 27-2.5.14 Regarding land use regula tions, the August 2017 amendments established a process for creating uniform standards g overning new telecomm unications facilities on public rights-of-ways, phasing out f acility-specific land-us e-review at public meetings: the construction of new telecommunica tions facilities that conform to design parameters established fr om time to time by the land use department and are appr oved for use following a pu blic hearing in the historic districts by the historic di stricts review board or outside the historic districts by the planning co mmission, provided that notice of the use of the approved desi gn 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 im pact 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 telecommunica tions facilities comp ly with 47 C.F.R. 1.1310 et seq.” Id. at § 27-2.19(E)(3). C. Standing 5 First, we outline the law governing the th reshold 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 di d not file a cross-appeal. This argument ignores well-established, black-l etter law. The issue of Artic le 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, cl aims 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 ju risdiction, “bears the burden of establishing standing as of the time [it] brought this laws uit and maintaining it thereafter.” Carney v Adams , 141 S. Ct. 493, 499 (2020). To sustain this burden, a plai ntiff must allege it has “(1) suffered an injury in fact, (2) that is fairly tra ceable 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 fi rst 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 protect ed interest’ that is ‘concrete and particularized’ and ‘actua l or imminent, not conj ectural or hypothetical.’” Id. at 1548 (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560 (1992)). An injury is “concrete” if it “actually ex ist[s]” and is “‘real’” ra ther than “‘abstract.’” Id. (quoting Webster’s Third New Internat ional Dictionary 472 (1971)). “For an injury to be ‘particularized,’ it ‘must af fect the plaintiff in a pe rsonal 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 (2 013) (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 alle ge “a substantial likelihood that the defendant’s conduct caused plai ntiff’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 inde pendent 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 esta blish that the defenda nt was the proximate cause of its injury. Id . Nor does it require a showing th at 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 st age, a plaintiff can satisfy the “fairly traceable” requirement by adva ncing allegations which, if proven, allow for the conclusion that the challe nged conduct is a “but fo r” 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 Amen dment, made applicab le to the States through the Fourteenth, provides that priv ate 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 Amendmen ts to Chapter 27, by facilitating the placement of17 telecommunications facilities on the public rights-of-way , effect a taking of its members’ homes and businesse s. 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 ex emption from land use regulations by the State, for the placem ent of wireless teleco mmunications facilities on the sidewalk directly in front of Plaintiffs’ homes and businesses will render their present homes and busin esses similarly un inhabitable and unusable and is an unlawful c onfiscation 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 in jury is speculative. And even if the placement of telecommunications facilities on public rights- of way could constitute a taking of adjoining private pr operty, 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) (c oncluding taking did not occur when county passed resolution that would lead to taking of home but “rat her the taking occurred when the plaintiffs were actually required permanen tly 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 re lative 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 for18 refusing to exercise ju risdiction.’” (quoting Reno v. Catholic Soc. Servs., Inc. , 509 U.S. 43, 57 n.18 (1993))). Turning to the aspect of Count Th ree based on Alliance members already leaving their homes and business, here the Alliance alleges a specific injury that satisfies the first requireme nt for standing stated in Spokeo . However, the Alliance has not satisfied the second Spokeo requirement—that the inju ry is “fairly traceable” to the WCAIIA and the Amendments to Chap ter 27. While these two legislative acts made it slightly easier for telecommunications companie s to obtain approval to construct new telecommunications facilities, the Alliance fail s to allege facts capable of showing that “but for” these two le gislative acts Santa Fe would not have approved the construction of the telecommunica tions facilities at i ssue. Notably, the Alliance does not allege members of the Sa nta Fe boards in charge of land use and zoning/planning were prepared to de ny 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 telecommu nications facilities causing Alliance members to leave th eir homes and businesses w ould not have occurred but for passage of the WCAIIA and the Amendm ents 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 th e Amendments to Chapter 27 violate procedural and substantive due process. Th e substantive due process aspect of this claim hinges on the Alliance’s contention th at newly constructe d telecommunications facilities present a threat to the health, life, and proper ty of Alliance members. For the same reasons the Allianc e’s takings claim based on co mpleted 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 Sant a Fe would not have approv ed new telecommunications facilities absent passage of the WCAIIA and the Amendments to Chapter 27. We, however, reach a different conclusi on as to the pro cedural due process aspect of Count One. The Allia nce alleged that, as a result of these legislative acts, its members no longer receive notice prio r to the approval of a specific telecommunications facility. Th is in turn, the A lliance alleges, deprives its members of an opportunity to be heard in opposition to further development of telecommunications facilities . While we discuss in Sec tion III(D)(1) whether the Due Process Clause entitles the Alliance to the notice and opp ortunity to be heard it seeks, there can be no question the WCAIIA a nd the Amendments to Chapter 27 have directly altered the process used by Sant a 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 Santa20 Fe’s process for approving telecommunica tions facilities—creating a streamlined process where Santa Fe peremptorily adopts guidelines for telecommunications facilities rather than review ing 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 rela tive to its Count One claim that the WCAIIA and the Am endments to Chapter 27 de prive its members of notice and an opportunity to be heard. Turning to Count Eight een, there the Alliance ra ises a procedural and substantive due process claim against th e TCA. The Alliance alleges the TCA, by giving authority to the FCC to regulate ra dio-frequency emissions , preempts state and local regulation of those emissi ons, as well as the ability of state and local authorities to provide legal remedies fo r injuries attributable to radio-frequency, radiation emissions. We hold the Allian ce lacks standing to advance this claim. The claim is contingent on New Mexico a nd/or Santa Fe, in the abse nce of the TCA, regulating radio-frequency emissions to a greater degree than the F CC does through 47 C.F.R. § 1.1310. But no allegations in the ame nded complaint make such an inference plausible. In fact, the amended compla int contains allega tions 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 te lecommunications facilities. See App., Vol. I at 13 (alleging that New Mexico has known for fo rty years that radio- frequency emissions are injurious). Accordingly, the amended complaint does not support the inference21 that but for the TCA, Alliance members coul d successfully bring su it for injuries they attribute to radio-frequency emissions. 6 Finally, in Count Two, the Alliance cont ends that three ma yoral 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 “insuffi cient telecommunications ca pacity.” The proclamation authorized Santa Fe officials to “work w ith Verizon Wireless to install temporary and/or mobile wireless telecommunicatio ns facilities on City property pending review and approval of fixed wireless facilitie s 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 govern ments.” Concurrence Op. at 2. We are not unsympathetic to the concurrence’s concern about shielding federal legisl ation from review where a local government, rather than the federal government, is the fi nal actor. But we do not review the amended complaint in a va cuum where local governments have always been constrained by the TCA. Not only, as the concurrence suggests, could the Alliance have alleged that local decision make rs were inclined to reject applications for new telecommunications fa cilities absent the TCA but the Alliance also could have alleged instances, pre-TCA, where lo cal officials, either in Santa Fe or elsewhere, rejected applications for new telecommunications facilities based on health effects. The amended complaint, howev er, alleges neither. Thus, we are left to speculate whether any local board would conc lude 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 sta nding to advance its substantive due process claim based on the mayoral proclamations. Alt hough the mayoral proclamations may have expedited the c onstruction of certai n telecommunications facilities, there is nothing in the amended complaint allowing for the inference that the same or similar facilitie s would not have been cons tructed 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 complain t goes so far as to allege that each wirele ss 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 st anding 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 Ame ndments to Chapter 27 eliminated notice and hearing requirements for the approva l of specific new telecommunications facilities. Therefore, the ma yoral proclamations could not have produced any further injury regarding the elimination of notice a nd hearing requirements. In this sense, the Alliance cannot allege either an injury fro m the mayoral proclama tions or that any lack of notice is fairly trace able to the proclamations.23 c. First Amendment claims In Count Four, the Alliance alle ges 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 radi o-frequency emissions. Count Nineteen alleges the TCA infringes th e 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 te lecommunications fac ilities. 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 radi o-frequency emissions to the FCC. Although we address whet her any of these counts state a claim upon which relief can be granted in Sec tions III(D)(3), (4), we conc lude here that the Alliance advanced sufficient allegations to satisfy the standing re quirements. Specifically, the Alliance cites to particularlimitations 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 ad opting a particular spoken position, then the Alliance alleged an injury fairly traceable to the afor ementioned legislative acts, an injury which this court coul d remedy by striking down the acts.24 3. Summary In summation, we hold the Alliance fail ed to allege fa cts satisfying the standing requirements as to its (1) Count Three taki ngs claim; (2) Count One substantive due process claim; (3) Count Eighteen procedural and substantive due process claims; and (4) Count Two procedural and substa ntive due process claims. 7 We, however, hold the Alliance has, for pur poses of the motion to dismiss stage, satisfied the standing requirements as to it s (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, Fi rst 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 Proce dure 12(b)(6), conclu ding 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 me mbers’ procedural due process rights by

7 Where we affirm the dismissal of these cl aims for lack of st anding rather than for failure to state a claim, the dismis sal must transform fro m a dismissal with prejudice to a dismissa l 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 standi ng is inappropriate, a nd should be corrected to a dismissal without prejudice.”). And it is in the purview of the district court to alter its judgment to reflect th is change such that we rema nd to the district court for that limited purpose. See id. at 1219–20.25 eliminating notice and hearing requirements prior to approva l of new telecommunications facilities. Both the WCAIIA an d the Amendments to Chapte r 27 involve local control over zoning and land use. Moreover, the WC AIIA and the Amendmen ts 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) (stati ng 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 heldthat 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 chal lenge, the Amendments merely streamlined the procedures for approving new telecomm unications facilities by enacting a system whereby Santa Fe adopted preset requi rements governing new telecommunications facilities rather than approving such facil ities one at a time. Santa Fe City Code § 27-2.19(C). Thus, even after the Amen dments, 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 munici pal-wide zoning regulations); see also Heffron v. Int’l Soc’y for Kris hna Consciousness, Inc. , 452 U.S. 640, 647 (1 981) (“[T]he First Amendment does not guarantee the right to co mmunicate one’s views at all times and places or in any manner that may be desi red.”). Accordingly, while the Amendments may have decreased the number of hearings on the matter, they did not eliminate all hearings on the regulation of ne w telecommunicatio ns facilities.26 2. Count Four Right to Petition Claim In Count Four, the Alliance alle ges the TCA, the WCAIIA, and the Amendments to Chapter 27 infringe its me mbers’ First Amendment right to petition the government because local officials cannot adopt thei r position in opposition to radio-frequency emissions and because its members cannot prevail in a legal claim seeking compensation for injuries alle gedly attributable to radio-frequency emissions. In pertinent part, the First Amendment states: “Congress shall make no law . . . abridging . . . the right of the pe ople 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 thei r ideas, hopes, and concerns to their government and their electe d 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 acces s to the courts.” Cal. Motor Transp. Co. v. Trucking Unlimited , 404 U.S. 508, 510 (197 2). 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 effo rts to petition the Santa Fe government regarding the health effect s of radio-frequency emissions , but the amended complaint never identifies a provision of the TCA, WC AIIA, or the Amendments to Chapter 2727 precluding any individual fro m, or penalizing any indi vidual for, petitioning the government regarding radio-frequency emi ssions. 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 pe titioning—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 A lliance alleges the TCA rest ricts its members’ First Amendment right to free speech. And Count Twenty alleges th e Amendments to Chapter 27 likewise restrict its members’ First Amendment right to free speech. Under the First Amendment, “Congress sha ll 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, rest ricts, or prohibits any individual from

9 Through the Fourteenth Amendmen t, 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 radi o-frequency emissions. 10 Accordingly, Counts Nineteen and Twenty of the amended complaint do not adva nce plausible claims, and we affirm the district court’s Rule 12(b )(6) dismissal of them.
III. CONCLUSION We affirm the district court’s dism issal of the Count One procedural due process claim and the claims advanced in Counts Four, Nineteen, and Twenty because, while the Alliance satisfied standi ng 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 fear s that if its members speak out against radiofrequency emissions at a hear ing on a new telecommunicati ons facility and Santa Fe does not approve construction of the new f acility, a court, in resolving a suit by a telecommunications company, might attri bute the denial of approval to public comments about the health effects of radi o-frequency emissions . This argument is fallacious for three reasons. First, this asserted fear has not inhibited Alliance members from speaking at public heari ngs, for the amended complaint alleges Alliance members “have participated in ever y approval process and have testified to their injuries and losses at ever y 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, th e Amendments to Chapter 27 eliminated hearings on specific new teleco mmunications facilities. Third, under the TCA and applicable Supreme Court precedent, any court reviewing a locality’s denial of approval for a new telecomm unications facility has no need to attribute the denial to particular public comments never adopt ed by the local offi cials. Rather, a locality’s mere failure to document its reas ons for denying an application to build a telecommunications facility entitles the tel ecommunications 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 subs tantial evidence containe d in a written record”); see also T-Mobile S., LLC v. City of Roswell , 574 U.S. 293, 300 (2 015) (“In order to determine whether a locality’s denial was supported by substant ial evidence . . . courts must be able to identify the reas on or reasons why the locality denied the application.”).29 affirm the district court’s dismissal of the Count One s ubstantive 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 requirement s to advance these claims. We remand to the district court for the li mited purpose of modifying its judgment to reflect that these claims are dismissed without prejudice.No. 20-2066, Santa Fe Allianc e v. City of Santa Fe LUCERO , J., concurring Though I agree with the bulk of the major ity’s analysis, I write separately to note my respectful disagreement concerning the A lliance’s standing to rais e claims against the TCA. Because the TCA limits the decisi on-making discretion of state and local policymakers in a manner substantially likely to have produced the decisions and policies that caused the Alliance’s allege d injuries, I would hold that the Alliance has standing to challenge the statute. The majority’s holdi ng to the contrary effectively allows the federal government to evade review by restricting the di scretion of state and local officials and then claiming that the ultimate decision was the o fficials’ alone. Rather than create such a loophole, I would affirm on the basis of sovereign immunity. As the majority explains, the TCA pr ohibits state and local governments from regulating telecommunications facilities “on the basis of the environmental effects of radio frequency emissions.” 47 U.S.C. § 3 32(c)(7)(B)(iv). Include d 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 regulat ions challenged by th e 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 inthe absence of the TCA’s fetters . The majority concludes that because there are “no allegations in the amende d complaint [that] make such an inference plausible,” the Alliance lacks st anding to challenge the TCA. To establish standing, a plaintiff must allege “a substantial likelihood that the defendant’s conduct caused plai ntiff’s injury in fact.” N ova 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 ca use widespread and severe environmental harms, state and local decision-makers wo uld 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 differen tly in the absence of the TC A 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 ul timate decision was the local government’s and may have been the same even without th e 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 “p ursue 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 th e only potentially relevant ex ception 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 ag ency or an officer or employee thereof acted or failed to act in anofficial 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 Unite d 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. Fede ral 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 withinthat 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.