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 PROPERTIES LC, a Utah

limited liability company, individually and 

on behalf of all those similarly situated; 

THE WESTERN GROUP LC, individually 

and on behalf of all 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: 1
2 

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 all those similarly 

situated; FLYING R LLC, 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: 2
3 

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 company individually and 

on behalf of all those similarly situated; 

OSCAR VAN THORNOCK, individually 

and on behalf of all 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 and 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 and on behalf of all 

Appellate Case: 22-4083 Document: 010110989227 Date Filed: 01/24/2024 Page: 3
4 

those similarly situated; JOHN 

SINGLETON, individually 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. 

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_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges. 

_________________________________ 

This is an appeal by plaintiffs from the district court’s dismissal of (1) their 

federal claims in the second amended class 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 jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. BACKGROUND 

Plaintiffs allege the following 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 Garrett is the manager of the Airport. 

Plaintiffs’ ownership and use of the hangars are governed by ground lease 

agreements, which contain the following provision—or something nearly identical—

requiring compliance with a particular City ordinance, namely Title 8-3-3: 

Lessee hereby acknowledges the applicability of Title 8, Ogden City 

Ordinances to this Lease Agreement. Lessee hereby acknowledges notice 

of the terms, conditions and requirements presently contained therein and 

* 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. 

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agrees, so far as said ordinance applies to persons such as Lessee herein, to 

comply with such ordinance 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 through G) Leases and Agreements as 

currently existing or as may be amended 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 the Airport to grant ground leases for 

private hangars for a term of 15 years. As to lease renewal, Title 8-3-3 provided that 

when the lease expired, the “lessee shall have the ‘first right of refusal’ to renew 

the lease; provided however, that the lease is not in default. Each renewal term 

will be for five (5) years.” Id. at 81.1

 

According to plaintiffs, “[t]he lease renewals have historically been automatic 

upon the [lessee’s] request.” Id. As a result, plaintiffs alleged that they “placed great 

stock in being able to reliably renew their leases . . . which has given [plaintiffs] 

confidence in pouring hundreds of thousands of dollars’ worth 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 recommended changes to existing ground leasing 

policies and further identified other areas where 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 proposed that all future 

1

 Most of the lease agreements also contain a “first right of refusal” provision 

in addition to the one contained in Title 8. See Aplt. App., vol. I at 82. 

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ground leases for construction of new hangars would last no longer than the time 

needed for the lessees to recoup their construction investment, after which the 

hangars would belong to the Airport 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 Airport’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 submitted 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 hangar owners. Ultimately, however, the City 

Council adopted the amendments. Shortly thereafter, plaintiffs filed suit. 

II. DISTRICT COURT PROCEEDINGS 

Defendants moved to dismiss plaintiffs’ first amended complaint under 

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The district 

court denied the motion to dismiss for lack of jurisdiction but agreed that plaintiffs 

had failed to state plausible claims for relief. Plaintiffs sought 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 

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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 and dismissed plaintiffs’ federal claims 

(physical taking, regulatory taking, First Amendment retaliation, and declaratory 

judgment) with prejudice under Rule 12(b)(6). Then, having dismissed the federal 

claims, the court declined to exercise supplemental jurisdiction over plaintiffs’ state 

law claims (promissory estoppel, breach of contract, and breach of the covenant of 

good faith and fair dealing) and dismissed those claims without prejudice under 

28 U.S.C. § 1367(c)(3). Plaintiffs appeal. 

III. STANDARD OF REVIEW 

“We review de novo a district court’s grant 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 complaint 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 omitted). A claim is plausible on its face 

“when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

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556 U.S. 662, 678 (2009). But “the tenant that a court must accept” well-pled factual 

allegations as true “is inapplicable to legal conclusions.” Id.

2

 

IV. LEGAL FRAMEWORK 

A. Takings Claims 

 1. Physical Taking 

“The Fifth Amendment’s Takings Clause provides that ‘private 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 physical takings and regulatory takings. Its plain 

language requires the payment of compensation 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 plaintiffs’ 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 independent basis of jurisdiction for doing so.” Aplt. App., 

vol. II at 347, 358 (internal 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 Judgment Act does not confer jurisdiction upon 

federal courts, so the power to issue declaratory judgments must lie in some 

independent basis of jurisdiction,” namely “diversity jurisdiction” or “federal 

question jurisdiction”) (internal quotation marks omitted)). Having found no federal 

question jurisdiction, the court dismissed the claims for declaratory relief. Because 

we affirm the dismissal of the federal claims, the claims for declaratory relief were 

also properly dismissed. 

Relatedly, “[u]nder 28 U.S.C. § 1367(c)(3), a district court may decline to 

exercise supplemental jurisdiction if the . . . court has dismissed all claims over 

which it has original jurisdiction. When all federal claims have been dismissed, the 

court may, and usually should, decline to exercise jurisdiction over any remaining 

state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) 

(internal quotation marks omitted). Again, because we affirm the court’s dismissal of 

the federal claims, the court properly declined to exercise supplemental jurisdiction 

over the state claims. 

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the Constitution contains no comparable reference to regulations that 

prohibit a property owner from making certain 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 Amendment also extends to intangible 

rights, such as leaseholds 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 private party’s contract rights constitute a 

property right, “the exercise of contractual rights 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 contracts because the Government acts in its 

commercial or proprietary capacity in entering contracts, rather than in its sovereign 

capacity. Accordingly, remedies arise from the contracts themselves, rather than 

from the constitutional protection of private property rights”) (citation omitted)). 

2. Regulatory Taking 

 In addition to physical takings, “[t]he Supreme Court has recognized that 

government regulation of private property may, in some instances, be so onerous that 

its effect is tantamount to a direct appropriation 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 extraordinary circumstance when no productive or economically 

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beneficial use of land is permitted” resulting from the government regulation. 

Tahoe-Sierra, 535 U.S. at 330 (internal quotation 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 omitted). A plaintiff seeking to 

establish a regulatory taking has a “heavy burden.” Buffalo Teachers Fed’n v. Tobe, 

464 F.3d 362, 375 (2d Cir. 2006). 

B. First Amendment Retaliation 

To state a First Amendment retaliation claim, 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 suffer an injury that 

would chill a person of ordinary firmness from continuing to engage in that 

activity; and (3) that the defendant’s adverse action was substantially 

motivated as a response to the plaintiff’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 they 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 

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takings remedy, plaintiff must have alleged that the Government 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 valued as a fee simple assessment and . . . 

historically [some lessees had] pass[ed] the hangars from generation to generation or 

placed [them] in trusts for inheritance purposes.” Aplt. Opening Br. at 11. They 

further maintain that the first right of refusal created a property interest that was 

taken when the City modified Title 8. See id. at 14. 

Assuming, without deciding, that the City acted as “sovereign,” the problem 

for plaintiffs is that they have failed to provide any authority that the “first right of 

refusal,” fee-simple assessments, or terms of their estate-planning documents made 

them the rightful owners of the Airport property. 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 brief must contain . . . the argument, which [in turn] must 

contain[] appellant’s contentions and the reasons for them, with citations to the 

authorities . . . on which the appellant relies”).3

 

3

 Plaintiffs argue for the first time on appeal that the lease 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 court will not consider an issue 

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Similarly, we affirm the district court’s dismissal of plaintiffs’ regulatorytaking claim because they fail to challenge the basis for the 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 advancing reasoned argument as to the grounds for the appeal”) 

(internal quotation marks omitted)). 

B. First Amendment Retaliation

 We agree with the district court that “[p]laintiffs’ commencement of this 

lawsuit against the City and the Airport is a constitutionally protected activity under 

the petitioning clause of the First Amendment.” Aplt. App., vol. II at 355. As such, 

we address the second and third elements required to state 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 injury 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 district court explained that the action that 

plaintiffs “now allege was retaliatory and chilling—Defendants’ 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, according 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). 

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beyond the parameters of a “[t]ypical” retaliation claim in which the alleged 

retaliatory conduct “occur[s] outside the scope of the plaintiff’s petition for redress.” 

Id. at n.96 (emphasis added), citing Van Deelen v. Johnson, 497 F.3d 1151, 1157 

(10th Cir. 2007). Noting plaintiffs’ failure to “identify[] . . . a single case in which a 

plaintiff brought a First Amendment retaliation claim in such circumstances, let alone 

one in which such a claim was found plausible,” the court determined that plaintiffs 

failed to plausibly plead the second element. 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 met the second element, they did not meet the third 

element, which requires them to plausibly plead “that the defendant’s adverse action 

was substantially motivated as a response 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’ exercising their First Amendment 

rights by bringing this lawsuit.” Aplt. App., Vol. II at 355. 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 court 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 other types of leases was made before 

this lawsuit began. Thus, there are no grounds for the court to reasonably 

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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 defendants’ attempts to resolve individual claims as 

“an effort to retaliate against and/or bully Lessees who opted to engage in the 

lawsuit,” is unavailing. Aplt. Opening Br. at 17. Instead, we agree with the district 

court that this was “essentially a settlement offer, not an act of deterrence or 

intimidation.” Aplt. App., vol. II at 357. 

VI. CONCLUSION 

The judgment of the district 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 the state-law contract claims were dismissed without 

prejudice, defendants are not the prevailing party on the breach-of-contract claims in 

this federal action. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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