UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ LEW WHEELWRIGHT, individually and on behalf of all those similarly situated; KENT WRIGHT, individually and on behalf of all those similarly situated; DAVID STORY, individually and on behalf of all those similarly situated; UTAH AIRWAYS LLC, individually and on behalf of all those similarly situated; DAVID WESTWOOD, individually and on behalf of all those similarly situated; DURBANO PROPERTI ES LC, a Utah limited liability company, individually and on behalf of all those similarly situated; THE WESTERN GROUP LC, individually and on behalf of a ll those similarly situated; DAVID L. DURBANO, individually and on behalf of all those similarly situated; JEFF STRAHAN, individually and on behalf of all those similarly situated; TROY LARKIN, individually and on behalf of all those similarly situated; STEPHEN SWENSON, individually and oh behalf of all those similarly situated, Plaintiffs - Appellants, and
OGDEN REGIONAL AIRPORT ASSOCIATION, INC., a Utah non-profit corporation; WENDY MARSELL, individually and on behalf of all those similarly situated; WAYNE LAW, individually and on behalf of all those similarly situated; KELLY CROZIER, individually and on behalf of all those similarly situated; ANDREW HECHT, No. 22-4083 (D.C. No. 1:21-CV-00075-DBB) (D. Utah) FILED United States Court of Appeals Tenth Circuit 

### January 24, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 12 individually and on behalf of all those similarly situated; BARRY NEUMAYER, individually and on behalf of all those similarly situated; BRENT CARLSON, individually and on behalf of all those similarly situated; DAN BLUMEL, individually and on behalf of all those similarly situated; DAVE CARLSON, individually and on behalf of all those similarly situated; DKS PROPERTIES, LLC, a Utah limited liability company, individually and on behalf of all those similarly situated; ED RICH, individually and on behalf of a ll those similarly situated; FLYING R LL C, individually and on behalf of all those similarly situated; JUSTIN R. ECCLES, individually and on behalf of all those similarly situated; ROYAL S. ECCLES, individually and on behalf of all those similarly situated; LARRY E. JONES, individually and on behalf of all those similarly situated; RALPH CHADBURN, individually and on behalf of all those similarly situated; R. B. WILLEY, individually and on behalf of all those similarly situated; ROUND TRIP THAIRAPY, a Utah Limited Liability Company, individually and on behalf of all those similarly situated, LLC; MARK COWLEY, individually and on behalf of all those similarly situated; DAVID L. SHUMWAY, individually and on behalf of all those similarly situated; JAMES G. CUTRUBUS, individually and on behalf of all those similarly situated; RELIABLE EQUIPMENT & ENGINEERING LLC, individually and on behalf of all those similarly situated; BRUCE MASON, individually and on behalf of all those similarly situated; MANAGEMENT SCIENCES CORP., individually and on behalf of all those similarly situated; SHAMROCK 2 LLC, individually and on Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 23 behalf of all those similarly situated; COWRIDE LLC, individually and on behalf of all those similarly situated; SETH C. SCHALL, individually and on behalf of all those similarly situated; KATHERINE J. SCHALL, individually and on behalf of all those similarly situated; CHARLES JOHNSON, individually and on behalf of all those similarly situated; JOHN CARPER, individually and on behalf of all those similarly situated; TIMOTHY RENE FELKER, individually and on behalf of all those similarly situated; A&R INC, individually and on behalf of all those similarly situated; ROBERT L. JOHNSON, individually and on behalf of all those similarly situated; JOEL W. PIERCY, individually and on behalf of all those similarly situated; JIM PETERSON, individually and on behalf of all those similarly situated; SHERRIE PETERSON, individually and on behalf of all those similarly situated; TAMERA NEWMAN, individually and on behalf of all those similarly situated; SHEILA GARVEY, individually and on behalf of all those similarly situated; SCOTT MAJOR; MEIJE INVESTMENTS LLC, a Utah limited liability compa ny individually and on behalf of all those similarly situated; OSCAR VAN TH ORNOCK, individually and on behalf of a ll those similarly situated; RICK ROHLER, individually and on behalf of all those similarly situated; VERN FARR, individually and on behalf of all those similarly situated; FARRV LLC, individually a nd on behalf of all those similarly situated; SCOTT JACKSON, individually and on behalf of all those similarly situated; STEPHEN FABISZAK, individually and on behalf of all those similarly situated; RSL HANGAR LLC, individually a nd on behalf of all Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 34 those similarly situated; JOHN SINGLETON, individua lly and on behalf of all those similarly situated; RALPH DOUGLAS, individually and on behalf of all those similarly situated; STRICTLY EXPERIMENTAL CREATIONS INC. , individually and on behalf of all those similarly situated; DAVID ERICKSON, individually and on behalf of all those similarly situated; HOMER CUTRUBUS, individually and on behalf of all those similarly situated; TROY CUTRUBUS, individually and on behalf of all those similarly situated; H & P INVESTMENTS, a Utah limited liability company individually and on behalf of all those similarly situated; ROB MARTIN, individually and on behalf of all those similarly situated; DAVID R. WALKER, individually and on behalf of all those similarly situated; DON PANTONE, individually and on behalf of all those similarly situated; MIKE MCKEE, individually and on behalf of all those similarly situated; LUCKY LAKE LLC, individually and on behalf of all those similarly situated; TIMOTHY J. POPP, individually and on behalf of all those similarly situated; BEN SHELDON, individually and on behalf of all those similarly situated, Plaintiffs,

v. OGDEN CITY AIRPORT, a subdivision of Ogden City; OGDEN CITY, a municipality in the State of Utah; BRYANT GARRETT, in his capacity as manager of the Ogden City Airport, Defendants - Appellees. Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 45 ________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , KELLY , and McHUGH , Circuit Judges.

________________ _________________ This is an appeal by plain tiffs from the district cour t’s dismissal of (1) their federal claims in the second amended cl ass action complaint (SAC) with prejudice under Fed. R. Civ. P. 12(b)(6) and (2) their state claims without prejudice under 28 U.S.C. § 1367(c)(3). Exercising jurisd iction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND Plaintiffs allege the followi ng in the SAC. Plaintiffs are individuals or entities that own or have owned aircraft hangars on ground leased from defendant Ogden City Airport (Airport)—a public aviation facility owned and managed by defendant Ogden City (City). Defendant Bryant Garre tt is the manager of the Airport. Plaintiffs’ ownership and use of the hangars are governed by ground lease agreements, which contain the following pr ovision—or something nearly identical— requiring compliance with a particular C ity ordinance, namely Title 8-3-3: Lessee hereby acknowledges the appli cability of Title 8, Ogden City Ordinances to this Lease Agreement. Lessee hereby acknowledges notice of the terms, conditions and requirem ents presently contained therein and

* After examining the briefs and appella te record, this pa nel 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. Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 56 agrees, so far as said ordinance applie s to persons such as Lessee herein, to comply with such ordina nce as now in effect or as it may be amended during the term of this Lease or any renewal. Specifically, the terms and conditions of Title 8-3-3 (A thro ugh G) Leases and Agreements as currently existing or as may be am ended are incorporated herein by reference and made part hereof as though written herein. Aplt. App., vol. I at 82. Until April 2021, Title 8-3-3 allowed th e Airport to grant ground leases for private hangars for a term of 15 years. As to lease renewal, Titl e 8-3-3 provided that when the lease expired, the “ lessee shall have the ‘first ri ght of refusal’ to renew the lease; provided however, that the lease is not in de fault. Each renewal term will be for five (5) years. ” Id . at 81. 1 According to plaintiffs, “[t] he lease renewals have hi storically been automatic upon the [lessee’s] request.” Id . As a result, plaintiffs a lleged that they “placed great stock in being able to reli ably renew their leases . . . which has given [plaintiffs] confidence in pouring hundreds of thousan ds of dollars’ wort h of construction upgrade and upkeep into their respective hangars.” Id . at 82. In late 2018, the Airport proposed a new Business Plan (Plan) to stem the tide of its operating losses. The Plan recomme nded changes to existing ground leasing policies and further identified other areas wh ere changes should be made to allow the Airport to come close to breaking even from an operations standpoint. See Aplt. App., vol. II at 291-303. Plaintiffs alleged that the Plan pr oposed that all future

1 Most of the lease agreemen ts also contain a “first right of refusal” provision in addition to the one c ontained in Title 8. See Aplt. App., vol. I at 82. Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 67 ground leases for constructi on of new hangars would last no longer than the time needed for the less ees to recoup their constructi on investment, after which the hangars would belong to the Airpor t and be leased out through facility leases at a higher rate. See Aplt. App., vol. I at 84-85. They further alleged that under the Plan, the ground leases for existing hangars would not be renewed once the hangars reached a certain age. See id . Although the Plan was not formally adopted at that time, plaintiffs alleged that the Airpor t’s interactions with hangar owners “demonstrated that the [Plan] was in fact being utilized as a model for assisting the Airport turn a profit.” Id

. In April 2021, Mr. Garrett formally s ubmitted the proposed amendments to Title 8 to the Ogden City Council (City Council). Several groups opposed the amendments, including the Ogden Airport Advisory Board, the Ogden Regional Airport Association, and most of the hanga r owners. Ultimately, however, the City Council adopted the amendments. Shortly thereafter, plaintif fs filed suit.
II. DISTRICT COURT PROCEEDINGS Defendants moved to dismiss plaintif fs’ first amended complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Ru les of Civil Procedure. The district court denied the motion to dism iss for lack of jurisdiction but agreed that plaintiffs had failed to state plausible claims for re lief. Plaintiffs s ought and were granted permission to file their SAC in which they reasserted their previous claims of promissory estoppel, physical taking, regulatory taking, and entitlement to declaratory relief under 28 U.S.C. § 2201, and added new claims for First Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 78 Amendment retaliation, breach of contract, and breach of the covenant of good faith and fair dealing. Plaintiffs also added Mr. Garrett as a defendant in their claim under 42 U.S.C. § 1983. Defendants again moved to dismiss. The district court granted the motion a nd dismissed plaintiffs’ federal claims (physical taking, regulatory taking, Firs t Amendment retaliation, and declaratory judgment) with prejudice under Rule 12(b)(6 ). Then, having dismissed the federal claims, the court declined to exercise supplemental jurisd iction over plaintiffs’ state law claims (promissory estoppe l, breach of contract, and breach of the covenant of good faith and fair deali ng) and dismissed those cl aims without prejudice under 28 U.S.C. § 1367(c)(3). Plaintiffs appeal.
III. STANDARD OF REVIEW “We review de novo a district court’s gr ant of a 12(b)(6) motion to dismiss.” Johnson v. Reyna , 57 F.4th 769, 774 ( 10th Cir. 2023). “We accept as true all well-pleaded factual allegations in the comp laint and view them in the light most favorable to . . . the non-moving party. To survive a motion to dismiss, a complaint must include enough facts to state a claim to relief that is plausible on its face.” Id . (citations and internal quotation marks om itted). A claim is pl ausible on its face “when the plaintiff pleads fact ual content that allows the court to draw the reasonable inference that the defendant is lia ble for the misconduct alleged.” Ashcroft v. Iqbal , Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 89 556 U.S. 662, 678 (2009). But “the tenant that a court mu st accept” well-pled factual allegations as true “is inappli cable to legal conclusions.” Id

. 2

IV. LEGAL FRAMEWORK A. Takings Claims
1. Physical Taking “The Fifth Amendment’s Takings Clause provides that ‘priva te property [shall not] be taken for public use, without just compensation.’” N. Mill St., LLC v. City of Aspen , 6 F.4th 1216, 1224 (10th Cir. 2021) (quoting U.S. Const. amend. V). The text of the Fifth Amendment . . . provides a basis for drawing a distinction between physi cal takings and regulatory takings. Its plain language requires the payment of co mpensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But

2 The district court dismissed plaintif fs’ claims for declaratory relief under 28 U.S.C. § 2201 on the grounds that it did not have the authority to issue declaratory judgments absent “some indepe ndent basis of jurisdiction for doing so.” Aplt. App., vol. II at 347, 358 (interna l quotation marks omitted). See also Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1202 (10th Cir. 2012) (recognizing that “the Declaratory Judgme nt Act does not confer jurisdiction upon federal courts, so the power to issue d eclaratory judgments must lie in some independent basis of jurisdiction,” namely “diversity jurisdic tion” or “federal question jurisdiction”) (inter nal quotation marks omitted )). Having found no federal question jurisdiction, the court dismissed th e claims for declaratory relief. Because we affirm the dismissal of the federal clai ms, the claims for decl aratory relief were also properly dismissed. Relatedly, “[u]nder 28 U.S. C. § 1367(c)(3), a distri ct court may decline to exercise supplemental jurisd iction if the . . . court ha s dismissed all claims over which it has original jurisdicti on. When all federal claims have been dismissed, the court may, and usually shoul d, decline to exercise ju risdiction over any remaining state claims.” Koch v. City of Del City , 660 F.3d 1228, 1248 (10th Cir. 2011) (internal quotation marks omitted). Again, b ecause we affirm the court’s dismissal of the federal claims, the court properly declined to exerci se supplemental jurisdiction over the state claims. Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 910 the Constitution contains no comparable reference to regulations that prohibit a property owner from making cert ain uses of her private property. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency , 535 U.S. 302, 321-22 (2002). Although the property interest at the core of physical takings claims is typically real or personal property, the Fifth Amendm ent also extends to intangible rights, such as lease holds and contracts. See, e.g. , United States v. Gen. Motors Corp. , 323 U.S. 373, 378 ( 1945) (leaseholds); Lynch v. United States , 292 U.S. 571, 579 (1934) (contracts). But even if a pr ivate party’s contract rights constitute a property right, “the exercise of contractual right s by a governmental contracting party generally does not give rise to a constitutional claim. See Hughes Commc’ns Galaxy, Inc. v. United States , 271 F.3d 1060, 1070 (Fed. Cir. 2001) (holding that “[t]aking claims rarely arise under government contr acts because the Govern ment acts in its commercial or proprietary capacity in enteri ng contracts, rather th an in its sovereign capacity. Accordingly, remedi es arise from the contract s themselves, rather than from the constitutional protection of privat e property rights”) (c itation omitted)).
2. Regulatory Taking In addition to physical takings, “[t] he Supreme Court has recognized that government regulation of privat e property may, in some instances, be so onerous that its effect is tantamount to a direct appr opriation or ouster—and that such regulatory takings may be compensable under the Fifth Amendment.” N. Mill St ., 6 F.4th at 1224 (internal quotation marks omitted). But a per se regulatory taking occurs only under “the extraordin ary circumstance when no productive or economically Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 1011 beneficial use of land is permitted” re sulting from the government regulation. Tahoe-Sierra , 535 U.S. at 330 (internal quotati on marks omitted). “Anything less than a complete elimination of value, or a total loss,” must be analyzed under the framework set forth in Penn Central Transportation Co. v. City of New York , 438 U.S. 104 (1978). Id . (internal quotation marks omitte d). A plaintiff seeking to establish a regulatory taki ng has a “heavy burden.” Buffalo Teachers Fed’n v. Tobe , 464 F.3d 362, 375 (2 d Cir. 2006).
B. First Amendment Retaliation To state a First Amendment retaliation clai m, a plaintiff must plausibly allege (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffe r an injury that would chill a person of ordi nary firmness from continui ng to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plai ntiff’s exercise of constitutionally protected conduct. Requena v. Roberts , 893 F.3d 1195, 1211 (10th Cir. 2018) (internal quotation marks omitted).
V. DISCUSSION A. Takings Claims Plaintiffs maintain that th ey have stated a plausible claim for a physical taking because the City acted as “a sovereign” when it amended Title 8, and then, pursuant to its “sovereign” authority , the “City acquired property for the public good from the rightful owners.” Aplt. Opening Br. at 11. See also Pi Elecs. Corp. v. United States , 55 Fed. Cl. 279, 286 (2003) ( holding that “in order to show that it is entitled to a Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 1112 takings remedy, plaintiff must have alleged that the G overnment was exercising its right as sovereign to acquire property from the rightful owner for the public good”) (internal quotation marks omitted)). According to plaintiffs, they are rightful owners of the Airport property because their leasehold interests “were valu ed as a fee simple assessment and . . . historically [some lessees had] pass[ed] th e hangars from genera tion to generation or placed [them] in trusts for inheritance purposes.” Aplt. Opening Br. at 11. They further maintain that the first right of re fusal created a propert y interest that was taken when the City modified Title 8. See id . at 14. Assuming, without deciding, that the Ci ty acted as “sovereign,” the problem for plaintiffs is that they ha ve failed to provide any author ity that the “first right of refusal,” fee-simple assessments, or terms of their estate-planning documents made them the rightful owners of the Airport prope rty. As such, we decline to consider these arguments. See Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992) (declining to consider issue in part because appellant’s position not even minimally supported by legal argument or authority); Fed. R. App. P. 28(a)(8)(A) (Among other things, “[t]he appellant’s br ief must contain . . . the ar gument, which [in turn] must contain[] appellant’s conten tions and the reasons for th em, with citations to the authorities . . . on which the appellant relies”). 3

3 Plaintiffs argue for the first time on appeal that the le ase agreements are invalid or unenforceable as illusory. See Aplt. Opening Br. at 11-13. We decline to consider the issue because “[ g]enerally, an appellate cour t will not consider an issue Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 1213 Similarly, we affirm the district court’s dismissal of plaintiffs’ regulatorytaking claim because they fail to challenge the basis for th e district court’s ruling. See Nixon v. City & Cnty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015); see also United States v. Kunzman , 54 F.3d 1522, 1534 (10th Cir. 1995) (explaining that “[i]t is insufficient merely to state in one’s brief that one is appealing an adverse ruling below without advanci ng reasoned argument as to th e grounds for the appeal”) (internal quotation marks omitted)).
B. First Amendment Retaliation We agree with the district court th at “[p]laintiffs’ co mmencement of this lawsuit against the City and the Airport is a constituti onally protected activity under the petitioning clause of the First Amendment. ” Aplt. App., vol. II at 355. As such, we address the second and third elemen ts required to stat e a plausible First Amendment retaliation claim. The second element requires a plaintiff to plausibly plead that “the defendant’s actions caused the plaintiff to suffer an in jury that would chill a person of ordinary firmness from continuing to engage in that activity.” Requena , 893 F.3d at 1211 (internal quotation marks omitted). The dist rict court explained that the action that plaintiffs “now allege wa s retaliatory and chilling—Defe ndants’ refusal to renew their ground leases—is the same action that led Plaintiffs to bring this lawsuit in the first place.” Aplt. App., vol . II at 356. This claim, ac cording to the court, was

raised for the first time on appeal.” Tele-Commc’ns, Inc. v. Comm’r , 104 F.3d 1229, 1232 (10th Cir. 1997). Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 1314 beyond the parameters of a “[t]ypical” retaliation cl aim in which the alleged retaliatory conduct “occur[s] outside the scope of the plaintif f’s petition for redress.” Id . at n.96 (emphasis added), citing Van Deelen v. Johnson , 497 F.3d 1151, 1157 (10th Cir. 2007). Noti ng plaintiffs’ failure to “identif y[] . . . a single case in which a plaintiff brought a First Amendment retaliati on claim in such circumstances, let alone one in which such a claim was found plausibl e,” the court determined that plaintiffs failed to plausibly plead the second elemen t. Aplt. App., vol. II at 356. Again, plaintiffs’ failure on appeal to provide any authority to support their argument means that we will not consider the issue. See Phillips , 956 F.2d at 953-54; Fed. R. App. P. 28(a)(8)(A). But even if plaintiffs me t the second element, they did not meet the third element, which requires them to plausibly plead “that th e defendant’s adverse action was substantially motivated as a res ponse to the plaintiff’s exercise of constitutionally protected conduct.” Requena , 893 F.3d at 1211 (internal quotation marks omitted). We agree with the district court that defendants’ failure to renew the ground leases was not “ a response to Plaintiffs’ exercisi ng their First Amendment rights by bringing this lawsuit.” Aplt. App., Vol. II at 35 5. To the contrary, it was defendants’ refusal to renew the leases that “led Plaintiffs to file this lawsuit in the first place.” Id . In addition, the c ourt explained that [t]he fact that the Airport allegedly told certain plaintiffs after the commencement of this lawsuit that no one who is participating in it will receive a lease renewal does not change the fact that the decision to stop renewing ground leases in favor of ot her types of leases was made before this lawsuit began. Thus, there are no grounds for the court to reasonably Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 1415 infer that Defendants’ refusal to renew any of Plaintiffs’ ground leases, and any injury that may have cause, was substantially motivated by Plaintiffs’ lawsuit. Id . at 356. Plaintiffs’ contention that de fendants’ attempts to reso lve individual claims as “an effort to retaliate agai nst and/or bully Lessees w ho opted to engage in the lawsuit,” is unavailing. Aplt. Opening Br. at 17. Instead, we agree with the district court that this was “essentia lly a settlement offer, not an act of deterrence or intimidation.” Aplt. App., vol. II at 357.
VI. CONCLUSION The judgment of the distri ct court is affirmed. We deny appellees’ request for an award of attorney fees, which is based on a provision in the lease agreements that entitles the prevailing party in litigation concerning a breach or default to an award of reasonable fees. Because th e state-law contr act claims were dismissed without prejudice, defendants are not the prevailing party on the br each-of-contract claims in this federal action. Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 15