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, Individually 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, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

December 2, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

This case involves the termination of dock license agreements on New 

Mexico’s Ute Reservoir. Plaintiffs appeal from three orders of the district court, the 

combined effect of which was to grant summary judgment in favor of defendants on 

plaintiffs’ state and federal claims challenging the terminations. We dismiss part of 

this appeal for lack of jurisdiction, and, exercising jurisdiction under 28 U.S.C. 

§ 1291 over the remainder of the appeal, affirm the judgment. 

I. Background 

 Plaintiffs entered into license agreements with the New Mexico Interstate 

Stream Commission that permitted them to maintain private 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, and Natural Resources 

Department (“Division”). In May 2013, defendants 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 reservoir, “grounding” the docks and causing them structural 

damage. 

Plaintiffs sued, asserting a federal claim for violation of their due process 

rights under 42 U.S.C. § 1983 and a state claim for breach of contract. Both sides 

moved for summary judgment. In short, the court determined plaintiffs did not have 

a cognizable property interest in the license agreements, and it granted summary 

judgment in defendants’ favor on the due process claim. It dismissed the contract 
3 

claim without prejudice. And it awarded defendants their costs and attorney fees 

pursuant to the indemnity provision 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 agreements’ indemnity provision 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 district court erred by concluding (1) they did not have a 

property interest in the license agreements and (2) the indemnity 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 the 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 being appealed. Fed. R. App. P. 4(a)(1). 

“A timely filed notice of appeal is an absolute prerequisite 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 Alter 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 attorney’s fees, does not toll the time for a merits appeal.” Id.

at 567. In an attempt to circumvent this clear precedent, plaintiffs assert that their 

motion is distinguishable from a typical challenge to an award of costs and attorney 

fees because it addressed the substantive correctness of the district court’s legal 

reasoning. But the correctness of plaintiffs’ legal argument does not change the fact 

that their motion challenged only 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 fees – and not the court’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 conclusion that we lack 

jurisdiction to reach the merits of plaintiffs’ due process claim in this appeal. 
5 

III. Indemnity Provision 

 In awarding defendants their attorney fees and costs, the district court relied on 

the indemnity provision in the license agreements, which provides, in relevant part: 

“Licensee shall further indemnify the Commission for any attorneys’ fees incurred in 

connection with, and/or staff attorneys’ salaries allocable to, any action the 

Commission takes to enforce this Agreement.” Aplt. App., Vol. 1, at 50. Plaintiffs 

argue this provision should not be enforced because it is both procedurally and 

substantively unconscionable. We are not persuaded. 

 We review de novo issues relating to unconscionability 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 contract is unconscionable, 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 decline to enforce a contract 

provision if it is procedurally unconscionable, substantively unconscionable, or a 

combination of both. Strausberg v. Laurel Healthcare Providers, LLC, 

2013-NMSC-032, ¶ 32, 304 P.3d 409. Procedural unconscionability depends on “the 

particular factual circumstances surrounding the formation of the contract, including 

the relative bargaining strength, sophistication of the parties, and the extent to which 

either party felt free to accept or decline terms demanded by the other.” Figueroa, 

2012-NMCA-077, ¶ 22, 306 P.3d 480 (internal quotation marks omitted). 

Substantive unconscionability concerns “the legality and fairness of the contract 

terms themselves, including whether the contract terms are commercially reasonable 
6 

and fair, the purpose and effect of the terms, the one-sidedness of the terms, and 

other similar public policy concerns.” Id. (internal quotation marks omitted). 

Because unconscionability is an affirmative contract defense, the party alleging 

unconscionability has the burden of proving a contract provision is unenforceable on 

that basis. Strausberg, 2013-NMSC-032, ¶ 39, 304 P.3d 409. 

 In support of their argument that the indemnity provision is procedurally 

unconscionable, plaintiffs state in their brief that by the time they were presented 

with copies of the license agreement containing the provision, their docks were 

already floating on Ute Reservoir at a cost of tens of thousands 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 record that they did not freely and willingly 

enter into the license agreements. Their conclusory assertion, devoid of factual 

support, is insufficient to prove procedural unconscionability. Plaintiffs’ argument 

concerning substantive unconscionability also is underdeveloped. Rather than 

arguing that the provision is unconscionable as applied to them in this case, they raise 

various arguments as to how it might be applied in a way that is one-sided and 

unconscionable, such as by billing them for the time spent drafting the termination 

letters. In the absence 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 substantive unconscionability. 
7 

 The appeal is dismissed in part, and the judgment is affirmed. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge