UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ EMORY RUSSELL; STEVE LYMAN; GARY KELLEY; LEE MALLOY; LARRY ROBINSON; GARY HAMILTON; ART SCHAAP; GUY SMITH, Plaintiffs - Appellants,

v. THE NEW MEXICO INTERSTATE STREAM COMMISSION; THE NEW MEXICO ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT, State Parks Division; ESTEVAN LOPEZ, Indi vidually and in his official capacity as Director of the New Mexico Interstate Stream Commission; TOMMY MUTZ, Individually and in his official capacity as Director of the New Mexico State Parks Division, Defendants - Appellees. No. 15-2042 (D.C. No. 1:13-CV-00760-KG-LAM) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and PHILLIPS , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 2, 2015
Elisabeth A. Shumaker Clerk of Court2 This case involves the termination of dock lic ense agreements on New Mexico’s Ute Reservoir. Plai ntiffs appeal from three orders of the district court, the combined effect of which was to grant su mmary judgment in favor of defendants on plaintiffs’ state and federal claims challenging the termina tions. We dismiss part of this appeal for lack of jurisdiction, and, exercisi ng jurisdiction under 28 U.S.C. § 1291 over the remainder of th e appeal, affirm the judgment. I. Background Plaintiffs entered into license agreements with th e New Mexico Interstate Stream Commission that permitted them to maintain privat e boat docks at Ute Reservoir in Ute Lake State Park. Ute Reservoir is managed by the Commission and the State Parks Division of the New Mexico Energy, Minerals, a nd Natural Resources Department (“Division”). In May 2013, de fendants informed plaintiffs by letter that their license agreements were being terminated because the Division had determined that the docks had become a threat to public safety. A drought had yielded extremely low water levels at the rese rvoir, “grounding” the docks a nd causing them structural damage. Plaintiffs sued, asserting a federal cl aim for violation of their due process rights under 42 U.S.C. § 1983 and a state clai m for breach of contract. Both sides moved for summary judgment. In short, the court determined plai ntiffs did not have a cognizable property interest in the licen se agreements, and it granted summary judgment in defendants’ favor on the due pro cess claim. It dismissed the contract3 claim without prejudice. A nd it awarded defendants their costs and attorney fees pursuant to the indemnity provisi on in the license agreements. Plaintiffs filed a Motion to Alter or Amend Judgment, arguing 42 U.S.C. § 1988 prohibited awarding attorney fees incurred in connection with their § 1983 claim based on the license ag reements’ indemnity provisi on and that the indemnity provision was unconscionable. The court agreed with the former but not the latter, and amended its previous award by limiting defendants to costs and attorney fees incurred in connection with the contract claim only. Plaintiffs contend the dist rict court erred by concludi ng (1) they did not have a property interest in the licen se agreements and (2) the i ndemnity provision of license agreements was neither procedurally nor substantively unconscionable. Defendants, in turn, argue that we lack jurisdiction to consider plaintiffs’ first argument because they did not timely appeal the district court’s August 2014 orders disposing of their due process claim. As explained below, we agree with defendants’ jurisdictional argument and therefore dismiss th e appeal in part as to the due process claim. In addition, we reject plaintiffs ’ contention that the indemnity provision is unconscionable.4 II. Jurisdiction Where the United States is not a party, a civil notice of appeal must be filed within thirty days of the order or judgment be ing appealed. Fed. R. App. P. 4(a)(1). “A timely filed notice of app eal is an absolute prerequi site to our jurisdiction.” Utah Women’s Clinic, Inc. v. Leavitt , 75 F.3d 564, 566 (10th Cir. 1995). Here, the orders granting summary judgment on plaintiffs ’ due process claim were entered on August 29, 2014, yet plaintiffs did not file their notice of appeal until March 4, 2015. Plaintiffs contend that their Motion to A lter or Amend Judgment, properly construed as a Rule 59(e) motion, tolled the thirty -day period until the entry of the order disposing the motion. However, even if we construe plaintiffs’ motion as a Rule 59(e) motion, it is well established that “a Rule 59(e) motion, challenging only the award of costs and attorn ey’s fees, does not toll the ti me for a merits appeal.” Id. at 567. In an attempt to circumvent this cl ear precedent, plaintif fs assert that their motion is distinguishable from a typical cha llenge to an award of costs and attorney fees because it addressed the substantive co rrectness of the dist rict court’s legal reasoning. But the correctness of plaintiffs ’ legal argument does not change the fact that their motion challenged onl y costs and attorney fees. See Yost v. Stout , 607 F.3d 1239, 1243 (10th Cir. 2010) (concluding that a motion to alter or amend the judgment challenging only the court’s denial of fe es – and not the c ourt’s judgment on its merits – did not toll the time in which an appeal could be taken on the merits). Therefore, Yost and Utah Women’s Clinic compel the conclusi on that we lack jurisdiction to reach the merits of plaint iffs’ due process clai m in this appeal.5 III. Indemnity Provision In awarding defendants their attorney fees and costs, the dist rict court relied on the indemnity provision in the license agreements, which provi des, in relevant part: “Licensee shall further indemn ify the Commission for any a ttorneys’ fees incurred in connection with, and/or sta ff attorneys’ salaries a llocable to, any action the Commission takes to enforce this Agreement.” Aplt. App., Vo l. 1, at 50. Plaintiffs argue this provision should not be enforc ed because it is both procedurally and substantively unconscionable. We are not persuaded. We review de novo issues relating to unc onscionability of a contract provision. Figueroa v. THI of New Mexico at Casa Arena Blanca, LLC , 2013-NMCA-077, ¶ 23, 306 P.3d 480. To determine whether a c ontract is unconscionabl e, we apply state law. THI of New Mexico at Hobbs Center, LLC v. Patton , 741 F.3d 1162, 1169 (10th Cir. 2014). Under New Mexico law, a court may decl ine to enforce a contract provision if it is procedur ally unconscionable, substan tively unconscionable, or a combination of both. Strausberg v. Laurel He althcare Providers, LLC , 2013-NMSC-032, ¶ 32, 304 P.3d 409. Pro cedural unconscionability depends on “the particular factual circumstances surrounding the formation of the contract, including the relative bargaining strength, sophistication of the partie s, and the extent to which either party felt free to accept or decline terms de manded by the other.” Figueroa , 2012-NMCA-077, ¶ 22, 306 P.3d 480 (i nternal quotation marks omitted). Substantive unconscionability concerns “the legality and fairness of the contract terms themselves, including whether the contract terms are commercially reasonable6 and fair, the purpose and effect of the te rms, the one-sidedness of the terms, and other similar public policy concerns.” Id. (internal quotation marks omitted). Because unconscionability is an affirmative contract de fense, the party alleging unconscionability has the burden of proving a contract provisi on is unenforceable on that basis. Strausberg , 2013-NMSC-032, ¶ 39, 304 P.3d 409. In support of their argument that th e indemnity provision is procedurally unconscionable, plaintiffs st ate in their brief that by th e time they were presented with copies of the licens e agreement containing the pr ovision, their docks were already floating on Ute Reservoi r at a cost of tens of th ousands of dollars each, and thus plaintiffs were offered the license agreements on a take -it-or-leave-it basis. But plaintiffs point to no evidence in the reco rd that they did not freely and willingly enter into the license agreements. Their conclusory assertion, de void of factual support, is insufficient to prove proce dural unconscionability. Plaintiffs’ argument concerning substantive unconscionability al so is underdeveloped. Rather than arguing that the provision is unc onscionable as applied to them in this case, they raise various arguments as to ho w it might be applied in a way that is one-sided and unconscionable, such as by billing them fo r the time spent draf ting the termination letters. In the abse nce of any evidence that plaintiffs ’ were actually billed for this time or that the indemnity provision was actually applied to them in an unfair manner, they have not met their burden of proving su bstantive unconscionability.7 The appeal is dismissed in pa rt, and the judgment is affirmed.

Entered for the Court
Timothy M. Tymkovich Chief Judge