PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ CSMN INVESTMENTS, LLC, a Colorado limited liability company; CSMN OPERATIONS, LLC, a Colorado limited liability company, Plaintiffs - Appellants,

v. CORDILLERA METROPOLITAN DISTRICT, a political subdivision of the State of Colorado; CORDILLERA PROPERTY OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation; DAVID BENTLEY; DAVID DAVIES; ROBERT EGAN; KITTY GEORGE; LARRY KYTE; JUDITH G. MCBRIDE; RACHEL OYS; ED SHRINER; BRUCE SMATHERS; PATRICK WILHELM; TOM WILNER, Defendants - Appellees. 19-1094

_________________________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-02512-RM-GPG)

_________________________________ Brian J. Connolly (Andrew L.W. Peters, B ill E. Kyriagis, J. Thomas Macdonald, and Thomas J. Ragonetti with him on the briefs), Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, Colorado, for Plaintiffs-Appellants. Debra J. Oppenheimer (Jeffrey B. Smith wi th her on the brief), of Altitude Community Law P.C., Lakewood, Colorado , for Defendant-Appellees, Larry Kyte, Bruce Smathers, Patrick Wilhelm, and Tom Wilner. FILED United States Court of Appeals Tenth Circuit 

### April 28, 2020 Christopher M. Wolpert Clerk of Court2 Lisa F. Mickley and Gillian Dale of Hall & Evans, L.L.C., Denver, Colorado (Miles L. Buckingham and Ronald H. Nemirow, Nemiro w Perez, Lakewood, Co lorado with them on the brief), for Defendants-Appellees, Cord illera Metropolitan District, Cordillera Property Owners Association, David Bentley, David Davies, Robert Egan, Kitty George, Judith G. McBride, Rach el Oys, and Ed Shriner.

_________________________________ Before PHILLIPS , McHUGH , and MORITZ , Circuit Judges.

_________________________________ PHILLIPS , Circuit Judge.

_________________________________ The First Amendment guarantees th e people a right “to petition the Government for a redress of grievances.” The right immunizes litigants from liability for their petitioning activities, unless the pe titioning is a sham. In this appeal, we consider the exception for sham petitioning. Applying the Noerr-Pennington doctrine, the district court concluded that Appellees’ pe titioning was entitled to immunity because it was objectively reasonabl e and, thus, not a sham. We agree that Appellees are immune. Exerci sing jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s dism issal of this case. BACKGROUND Nestled in the Rocky Mountains of Ea gle County, Colorado is the residential community of Cordillera, which features a private lodge and spa (the “Lodge”) and a village center (the “Village”). For many years, the Lodge offered its dues-paying members certain amenities, including a golf c ourse and spa. In a ddition, it offered the public a restaurant and lodge. And the Vill age offered “open space, tennis courts and hiking paths, which all reside nts and their guests . . . enj oy[ed].” App. vol. 3 at 601.3 But in 2013, after years of monetary loss es, the owner of both parcels, Behringer Harvard Cordillera, LLC (BHC), listed them for sale. In 2016, CSMN Investments, LLC (CSMN) contracted with BHC to pur chase both properties. CSMN planned to open a private addiction-treatment center— its plan would close the properties to other uses. Patients would stay in the Lo dge while receiving treatment at nearby facilities located on both the Lodge and Villa ge parcels. The treatment center would serve people with conditions ranging from ea ting disorders to chemical dependency. Before closing on the sale, CSMN s ought confirmation from Eagle County’s Planning Director (the “Director”) that its planned use—operating an inpatient addiction-treatment center—was an allo wed use under the “Cordillera Subdivision Eleventh Amended and Restated Planne d Unit Development Control Document” (PUD). App. vol. 1 at 155. Most recently am ended in December 2009, the PUD “sets forth the land uses and development standard s for all properties of Cordillera.” App. vol. 3 at 457. For the Lodge and Village, the PUD lists thirty-four uses-by-right, including a “Clubhouse and Lodge”; “P rofessional Offices”; “Lodging and Accommodations”; various residential uses; and “Medical Offices/Facilities, limited to clinic and outpatient facilities for non-cr itical care, including, without limitation, for outpatient plastic surgery and other co smetic procedures.” App. vol. 3 at 467–68 (Lodge), 473–74 (Village ) (emphasis added).4 On June 1, 2016, 1 the Director issued his writt en interpretation of the PUD, concluding that CSMN could operate “a clinic including inpatient , non-critical care, for treatment of a variety of conditions incl uding, but not limited to, eating disorders, alcoholism, chemical depende ncy, and behavioral health conditions with a focus on health and fitness, including fitness faci lities, yoga, nutrition and recreation.” App. vol. 1 at 155 (emphasis added). He based his interpretation on the PUD’s approved use for “Medical Offi ces/Facilities, limited to clinic and outpatie nt facilities for noncritical care, including, without limitation, for outpatient plastic surgery and other cosmetic procedures.” Id. (emphasis omitted). He concluded that CSMN’s use fit this description because it excl uded critical care and require d treatment in a clinical setting. Further, he concluded that an a ddiction-treatment cente r qualified because the PUD allowed clinical care “without limitati on,” notwithstanding its specific reference to “plastic surgery and ot her cosmetic procedures.” Id. (emphasis omitted). I. Challenging the Director’s Interpretation In response to the Director’s interp retation, community members expressed dismay and outrage at the opening of an addiction-treatment center 2 in Cordillera and the closure of the Lodge and Village parcel s to the public. Illust rative of the local sentiment, one community member labele d CSMN’s plans a “[c]atastrophe for the

1 To correct a procedural issue, this interpretation was re-issued on July 1, 2016.

2 The CSMN addiction-treatment center was high-scale, with planned monthly patient charges of $60,000.5 community[,]” believing the center’s opening “should be stopped at all costs,” while another labeled “[t]he presence of such a facility in our community . . . poisonous to the essential values of the community by introducing a population destructive to our neighborhood’s peace of mind, real es tate values, and car efully cultivated reputation.” App. vol. 3 at 566, 581. Other members voiced concern for the safety of their children and grandchildre n: “I . . . don’t feel comfor table with the idea of my grandchildren playing outside or hiking in the neighb orhood where persons with addictions could be as well as ‘dealers’ who might be tr ying to reach the ‘patients’ inside!” Id. at 587. Yet others, who were cl ub members at the Lodge, were “devastated” by the sale, becau se the Lodge was the main reason that they moved to Cordillera in th e first place. Id. at 584. They could not belie ve that it would now be closed to paying community members. In view of the overwhelming commun ity response, Cordillera Property Owners Association (CPOA) and Cordil lera Metropolitan District (CMD) jointly appealed the Director’s PUD interpretation to the Board of County Commissioners (the “Board”). 3 To assist in this appeal, CMD created th e Legal Committee, which was comprised of Larry Kyte, Ed Shriner, Bruce Smathers , Patrick Wilhelm, and Tom Wilner. The appeal raised four challenge s to the Director’s interp retation: (1) allowing a use inconsistent with the PUD’s purpose of serving a resort, residential community;

3 CMD is a local-government entity pr oviding services to the Cordillera community and is governed by a board of directors. The CPOA is the property owners’ association for the community.6 (2) failing to “give ef fect to the legislativ e intent governing the us e of the [Lodge and Village] requiring [the parcels] to be used as a focal poi nt and social gathering place for the residents and guests of Cordillera”; (3) failing “to apply the actual language of the PUD which would preclude inpatient treatment and the pr oposed uses are something other than a clinic”; and (4) allo wing a use of the Lodge and Village so far beyond what PUD allows as to amount to a “wrongful Major Modification,” which would require “approval” from the CPOA “a nd formal amendment to the PUD.” App. vol. 3 at 594. After a hearing, the Board affirmed the Director’s interpretation on all but one point. Addressing CMD and CPOA’s third ba sis for appeal, the Board reversed the Director’s interpretation that CS MN could use the property as an inpatient -treatment center, concluding that the PUD permitted onl y outpatient clinical uses. So in a modified interpretation, the Board requi red that CSMN’s “clinic component be operated as an outpatient facility[,]” not inpatient, as CSMN had proposed. Id. at 598. On November 8, 2016, CMD and CPOA took their case to Colorado state court, seeking review of the Board’s ruli ng under Colorado Rule of Civil Procedure 106(a)(4). 4 The Colorado state district court af firmed the Board’s decision. Though CMD did not appeal, CPOA did, and on Nove mber 29, 2018, the Colorado Court of

4 This rule allows for the Colorado district cour t to review whether “any governmental body . . . exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, . . . based on the ev idence in the re cord before the defendant body . . . .” Co lo. R. Civ. P. 106(a)(4).7 Appeals affirmed the Board and the dist rict court in an unpublished decision. 5 See Benson v. Eagle County , No. 17CA1973, 2018 WL 6241 502 (Colo. App. Nov. 29, 2018). And on August 19, 2019, the Colorado Su preme Court denied certiorari. See Benson v. Eagle County , No. 18SC893, 2019 WL 393444 2 (Colo. Aug. 19, 2019). II. Civil Rights Actions Against CPOA , CMD, and Associated Individuals On December 28, 2017, with the stat e-court appeals pendi ng, CSMN turned the tables, filing a civil-right s action in Colorado federal di strict court against CPOA, CMD, and various associated people—the CMD board members, the CMD district manager, and the Legal Committee member s. CSMN’s complaint contains three claims, each against a differ ent subset of defendants. First, CSMN alleges that CMD violated the Americans with Disabilities Act (ADA). 6 It asserts that the ADA protects bot h CSMN’s future clients—drug- and alcohol-addicted people—and CSMN (as a “ser vice provider” to those individuals). App. vol. 2 at 446. By this view, CMD’s le gal actions restricted CSMN’s “use of the Property . . . due to [CSMN’s] efforts to pr ovide residential servic es to persons with disabilities,” so CMD had engaged in “int entional discriminati on against CSMN and its future clients[,] in viol ation of Title II of the ADA[.]” Id. Second, CSMN alleges

5 The state district court consolidated CMD and CPOA’s case with a similar case brought by Cordillera homeowners.

6 CSMN limited its claim to CMD, the onl y defendant that qualifies as a public entity under 42 U.S.C. § 12131(1) (defining “public entity” under the ADA to include “any . . . special purpose district, or other in strumentality of a State or States or local government”).8 that all Appellees violated the Fair Housing Act (FHA) by seeking to prevent CSMN’s future clients from residing at th e property (which CSMN calls a “dwelling” under the FHA) due to their disabilities. Id. at 447. CSMN alleges that Appellees accomplished this by pursuing a PUD interp retation that would have prevented CSMN from providing housing to disabled people. And third, CSMN brings a 42 U.S.C. § 1983 action against CMD, David Bentley, David Davies, Robert Egan, Kitty George, Larry Kyte, Judith McBride, Rach el Oys, Ed Shriner, Bruce Smathers, Patrick Wilhelm, and Tom Wilner (only CP OA is excluded). The claim alleges that “[u]nder color of state law,” those Appe llees “injured CSMN by conspiring to deprive, failing to stop the deprivation, or depriving CSMN and it s future Clients of equal protection . . . and due process . . . under the First and Fourteenth Amendments . . . , and as guaranteed under the ADA[.]” Id. at 448. In response, Appellees moved under Fe deral Rule of Civil Procedure 12(b)(6) to dismiss all claims, arguing that the ri ght to petition immuni zed their conduct. CSMN countered that Appellees’ claim of immunity was unfounded because the petitioning had sought an unlawful outcome, a nd that even if th e immunity somehow did apply, the petitioning fell within an ex ception to that immu nity, that is, the petitioning was a “sham.” The district court sided with Appellees, dismissing all but9 one 7 of the claims on the ground that their conduct was protected by NoerrPennington immunity—based on the First Amen dment’s right to petition—and that no exception to the immunity a pplied. CSMN timely appealed. DISCUSSION The First Amendment protects “the right of the people . . . to petition the Government for a redress of grie vances.” U.S. Const. amend. I. 8 The Supreme Court has “recognized this right to petition as one of ‘the most precious of the liberties safeguarded by the Bill of Rights,’ and . . . explained that the right is implied by ‘[t]he very idea of a governme nt, republican in form[.]’” BE & K Constr. Co. v.

7 The district court thought that all cl aims involved petitioni ng for a redress of grievances, except the one for “F HA Retaliation.” App. vol. 3 at 761. Under that claim, CSMN argued that Appellees had “encourag[ed] community sentiment and action” against CSMN’s plans. Id. (internal quotation mark s and citation omitted). The district court dismisse d it for failure to state a claim. CSMN has failed to challenge this dismissal in its openi ng brief, so we do not consider it. See Opening Br. 40 (“In light of the fact that this case presents a que stion of first impression with respect to the only issue presented for review , . . . CSMN respectf ully requests oral argument.” (emphasis added)). “An a ppellant’s opening brief must identify ‘appellant’s contentions and th e reasons for them, with cita tions to the authorities and parts of the record on wh ich the appellant relies.’” Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (quoting Fed. R. App. P. 28(a)(9)(A)). “[W]e routinely have declined to consider arguments that are not ra ised, or are inadequately presented, in an appe llant’s opening brief.” Id. “Scattered stat ements in the appellant’s brief are not enough to preserve an issue for appeal.” Exum v. U.S. Olympic Comm. , 389 F.3d 1130, 1133 n.4 ( 10th Cir. 2004) (citing Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)).

8 Because the First Amendment applies to state and local governments through the Fourteenth Amendment, th e petition clause “applies fully to municipal activities.” New W., L.P. v. City of Joliet , 491 F.3d 717, 722 (7th Cir. 2007); see also City of Columbia v. Omni Ou tdoor Advert., Inc. , 499 U.S. 365, 384 (1991) (applying NoerrPennington immunity to municipal activities).10 NLRB , 536 U.S. 516, 524–25 (200 2) (first alteration in or iginal) (citation omitted) (first quoting United Mine Workers of Am., Dist. 12 v. Ill. Bar Ass’n , 389 U.S. 217, 222 (1967); and then quoting United States v. Cruikshank , 92 U.S. 542, 552 (1875)). Immunity flows from this right, protecting those who seek redres s through the courts from liability for petitioning activities. See, e.g. , Cal. Motor Transp . Co. v. Trucking Unlimited , 404 U.S. 508, 510 (197 2) (“[T]he right to petition extends to all departments of the Government[, and] [t]he right of access to the courts is . . . but one aspect of the right of pe tition.” (citations omitted)). The contours of this immunity devel oped in a line of antitrust cases, giving rise to the moniker, Noerr-Pennington immunity. United Mine Workers of Am. v. Pennington , 381 U.S. 657 (1965); E.R.R. Presidents C onference v. Noerr Motor Freight, Inc. , 365 U.S. 127 (1961); see also Prof’l Real Es tate Inv’rs, Inc. v. Columbia Pictures Indus., Inc. , 508 U.S. 49, 60–61 (1993) (holding litigants immune from an antitrust claim under Noerr-Pennington immunity). In Noerr , for example, the Supreme Court considered whether a complainant could “base a Sherman Act conspiracy [claim] on evidence consisting entirely of activities of competitors seeking to influence public officials.” Pennington , 381 U.S. at 669 (discussing Noerr , 365 U.S. at 140). The Court said it could not , holding in light of the Petition Clause that “the Sherman Act does not prohibit . . . persons from associ ating . . . in an attempt to persuade the [gove rnment] to take particular action with respect to a law that would produce a restraint or a monopoly.” BE & K , 536 U.S. at 525 (omissions in original) (internal quot ation marks omitted) (quoting Noerr , 365 U.S. at 136).11 But the Court recognized that this broad immunity could shield litigants to use the courts to harass enemies with impunity . With this concern in mind, the Supreme Court carved out an exception, disallo wing immunity for “sham” petitioning: There may be situations in which a publicity campaign, ostensibly directed toward influenci ng governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfe re directly with the business relationships of a comp etitor and the application of the Sherman Act would be justified. Noerr , 365 U.S. at 144 (emphasis added). Thus, under the Noerr-Pennington “line of cases . . . genuine petitioni ng is immune from antitrus t liability, [but] sham petitioning is not.” BE & K , 536 U.S. at 525–26 (discussing Noerr , 365 U.S. at 144). In determining what constitu tes “sham petitioning” under Noerr-Pennington , the Supreme Court has adopted a two-step test. See Prof’l Real Estate , 508 U.S. at 60–61. Under the first step, a court c onsiders whether the petitioning has an objectively reasonable basis. Id. at 60. If so, immunity applies. Id. But if not, a court proceeds to the second step, consideri ng the subjective motivation behind the petitioning. See id. at 57 (“We . . . hold that an obj ectively reasonable effort to litigate cannot be sham regardless of subjec tive intent.”). Put another way, under Professional Real Estate ’s sham-petitioning test, subjectiv e intent matters only if the petitioning activity lacks objective reasonableness. In this circuit, this immunity extends beyond antitrust situations. See Cardtoons , L.C. v. Major League Baseball Players Ass’n , 208 F.3d 885, 889 (10th Cir. 2000) (en banc) (“[W]e do not question the applicati on of the right to petition outside of antitrust . . . .”). But we refer to it as Petition Clause immunity, reserving12 the name, Noerr-Pennington , for antitrust cases. See id. at 889–90 (“In our view, it is more appropriate to refer to immunity as Noerr-Pennington immunity only when applied to antitrust claims. In all other cont exts, . . . such imm unity derives from the [Petition Clause].” (footnote omitted)). Th is circuit has not yet had occasion to determine the scope of that immunity. In particular, we have not yet considered the applicability of Professional Real Estate ’s two-step test beyond antitrust. CSMN argues that we need not reach th is question because the Petition Clause does not apply when the petit ioning party seeks an “unlaw ful objective.” Opening Br. 21 (capitalization removed). Appellees counter that we should apply Professional Real Estate to sustain the district c ourt’s dismissal. We agree with Appellees, and as later explained, we decline CSMN’s i nvitation to create an unlawful-objective exception to Petition Clause immunity. Below, we first analyze whether Professional Real Estate is the proper shampetitioning test for the conduct at issue here a nd conclude that it is. We then apply it to Appellees’ petitioning, concluding it wa s objectively reasonable. We wrap up by explaining our rejection of an unlawful -objective exception to Petition Clause immunity. I. Sham-Petitioning Exception In determining the proper sham-petitioning test, Professional Real Estate provides a two-step approach: (1) is th e petitioning objectively reasonable? (2) and only if not, what is the subjective intent behind the petitioning? CSMN offers an13 alternative approach, whic h looks solely to the s ubjective intent behind the petitioning when determining whet her it constitutes a sham. We adopt Professional Real Estate here, meaning we must resolve whether the district court erred in finding Appellees’ petitioni ng objectively reasonable. Concluding that the petitioning was objectiv ely reasonable, we affirm the district

court. A. The Proper Test Because it presents a question of c onstitutional law, we review de novo the proper test for determining what constitutes sham petitioning. See, e.g. , Biodiversity Assocs. v. Cables , 357 F.3d 1152, 1160 (10th Cir. 2004). CSMN contends that Petition Clause immunity is improper for objectively reasonable “lawsuits that are unsuccessful and filed with the subjectiv e purpose of interfering with legallyprotected rights or imposing litigation costs regardless of the outcome.” Opening Br. 26 (citing Cardtoons , 208 F.3d at 889 n.4; Bill Johnson’s Rests., Inc. v. NLRB , 461 U.S. 731, 742–43 (1983); BE & K , 536 U.S. at 532; id. at 538 (Breyer, J., concurring)). Because these three cases form the basis of CSMN’s argument, we begin there.
In Bill Johnson’s , the Supreme Court considered whether the National Labor Relations Board (NLRB) could enjoin a state-court proceeding “brought by an employer to retaliate agains t employees for exercising federally-protected labor rights, without also finding that the suit la cks a reasonable basis in fact or law.” 461 U.S. at 733. In resolving this issue, the C ourt held that the NLRB “may not halt the14 prosecution of a state-court lawsuit, regardle ss of the plaintiff’s motive, unless the suit lacks a reasonable ba sis in fact or law.” Id. at 748. But the Court also commented—even though the issue was not befo re it—that if the plaintiff lost the suit, the NLRB could consider the suit’s “retaliatory intent” and order relief. Id. at 748–49. And because unsuccessful su its can still have been objectively reasonable, this Bill Johnson’s dicta contemplates liability even fo r objectively reasonable suits if brought with an improper purpose. In Cardtoons , we noted, in dicta, 9 the tension between this result and the result later prescribed by Professional Real Estate

— subjective motivation matters only if the petitioning is objectively unreasonable. See Cardtoons , 208 F.3d at 889 n.4. Given this te nsion, we offered this way of reconciling the two cases: The only way to reconcile [ Professional Real Estate and Bill Johnson’s ] is to limit them to the cont exts in which they arose. [ Professional Real Estate ] is an antitrust case; Bill Johnson’s is not. . . . [Thus, Professional Real Estate ] must be limited to the antitru st context. Outside of that context, the Petition Clause protects objectively reasonable lawsuits from being enjoined, but requires a court to look at the underlying statute to determine whether the in itiator of the suit can be held liable.

9 “Dicta are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involve d nor essential to determination of the case in hand.” Thompson v. Weye rhaeuser Co. , 582 F.3d 1125, 1129 (10th Cir. 2009) (citation and internal quotation marks omitted). In Cardtoons , the issue before the court was whether Petition Clause immunity applies to “purely private threats” “of litigation between purely private parties in a non-antitrust setti ng.” 208 F.3d at 886. The sham exception wa s not at issue.15 Id. Thus, the Cardtoons dicta favors the Bill Johnson’s dicta over Professional Real
Estate for determining what constitutes sham petitioning for all non-antitrust

contexts. But two years after Cardtoons , the Supreme Court decided BE & K , which undercut the basis on which the Cardtoons dicta rested. First, in BE & K , the Supreme Court identified the Bill Johnson’s language as dicta (the language relied on
in Cardtoons to differentiate between what was re quired to show that petitioning was a sham in antitrust cases vers us all other case types). See BE & K , 536 U.S. at 527–28 (explaining that Bill Johnson’s concerned whether the NLRB could enjoin an ongoing suit without finding that it was reasonably based, meaning the Court “had no actual need to decide whether th e [NLRB] could declare unlaw ful reasonably based suits that were ultimately unsuccessful”). And in BE & K , the Supreme Court rejected the Bill Johnson’s dicta, choosing to “exercis[e] [its ] ‘customary refusa l to be bound by dicta.’” Id. at 528 (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship , 513 U.S. 18, 24 (1994)). Thus, though we take special heed of dicta from our en banc decisions, the Supreme Court’s late r words steer us elsewhere here. In addition to rejecting the Bill Johnson’s dicta, BE & K provided three reasons for why it would be desirable for the Peti tion Clause to immunize unsuccessful but reasonably based lawsuits. 10 First, the Court noted that refusing immunity simply

10 BE & K concluded that by imposing liabil ity on “all reasonably based but unsuccessful suits filed w ith a retaliatory purpose,” the NLRB ran afoul of the National Labor Relations Act (NLRA) by ensnaring “petitioning that is objectively and subjectively genuine.” 536 U.S. at534–36. But because the issue was16 because the petitioning ultimately fails w ould ignore that “t he genuineness of a grievance does not turn on whether it succeeds.” 536 U.S. at 532. Given this, Supreme Court doctrine has “protected pet itioning whenever it is genuine, not simply when it triumphs.” Id. (citing Prof’l Real Estate , 508 U.S. at 58–61; Pennington , 381 U.S. at 670). In fact, the framers recogni zed this in the Firs t Amendment’s text: “[T]he text of the First Amendment [ does not] speak in terms of successful petitioning—it speaks simply of ‘the right of the pe ople . . . to petition the Government for a redr ess of grievances.’” Id. (omission in original) (quoting U.S. Const. amend. I). Thus, we see, in both the Petition Clau se’s text and in Supreme Court cases, a preference for immunizing unsuccessful, reasonably based petitioning. Second, good reasons supp ort this preference becau se “even unsuccessful but reasonably based suits advance so me First Amendm ent interests.” Id. For example, extending First Amendment protection to such suits allows for “the public airing of disputed facts” and “rais[ing] matters of public concern.” Id. (internal quotation marks and citation omitted). This allows part ies to “promote the evolution of the law by supporting the development of legal theori es that may not gain acceptance the first time around.” Id. “Moreover, the ability to lawfully prosecute even unsuccessful suits

unpresented, the Court “d[id] not decide whether the [NLRB] may declare unlawful any unsuccessful but reasonably based suits th at would not have been filed but for a motive to impose the costs of the litigation process, rega rdless of the outcome, in retaliation for NLRA pr otected activity[.]” Id. at 536–37. But a concurring opinion argued that the effect of th e decision was to impose the Professional Real Estate test on NLRA cases. See id. at 537 (Scalia, J., concurring). We agree with Justice Scalia’s statement and conclude that BE & K supersedes anything to the contrary in Cardtoons

.17 adds legitimacy to the court system as a designated alternative to force.” Id. Again, these reasons weigh heavily in favor of broad immunity for petitioning activities, so long as the petitioning has a legitimate basis in the law. Third, the Court recognized that some speech is unprotected, including false

statements. Id. And though baseless suits are “an alogous to false statements,” reasonably based, unsuccessful suits are not. Id. “For even if a suit could be seen as a kind of provable statement, the fact that it loses doe s not mean it is false.” Id. at 532–
33. These considerations weigh heavily in favor of protecting objectively reasonable petitioning. And thes e interests still ex ist when petitioning may have been brought with improper motives, provided it was commenced with an objectively reasonable basis. Asking courts to divine the subjective mindset motivating a lawsuit is a big ask. Litigants may have mixed reasons for suing, some proper, others not. Thus, without looking to objective reasonablen ess first, courts ma y need to balance improper motives against proper ones. Doing so would be difficu lt, requiring courts to peer inside the petitioning parties’ minds to make a judgment about their intentions. If the petitioning is objectively reasonable, a c ourt risks chilling legitimate litigation by withholding immunity for pa rties with legitimate grievances. 11

11 We recognize valid concerns over whether reasonably based petitioning could be so abusive as to be a sham and discuss that infra regarding California Motors ’s test for sham petitioning.18 These interests do not weigh as heavily in favor of immunity if the petitioning is objectively unreasonable. After all, su ch unreasonableness might evince improper motivation. Parties with leg itimate grievances can realisti cally expect some success. Absent that, courts can reas onably question whether the subj ective intent is to harass, discriminate, or interfere with legally protected rights. The sham-petitioning exception was created to stop th is sort of behavior. We agree that CSMN raises a valid concern about courts becoming an avenue for discrimination, but the Professional Real Estate test guards against that out come, by requiring that the petitioning be objectively reasonable. 12 So, for these reasons, we adopt Professional Real Estate ’s sham-petitioning test for determining whethe r conduct is a sham, such that it loses Petiti on Clause immunity. 13

12 We also recognize that by adopting the Professional Real Estate test, immunity may be extended to lawsuits brought to interfere with an opponent’s legally protected rights, provided such suits are reasonably based. But the First Amendment often extends its protection to activity we may not like. See, e.g. , Matal v. Tam , 137 S. Ct. 1744, 1751 (2017) (recognizing First Amendment protection for “ideas that offend”); R.A.V. v. City of St. Paul , 505 U.S. 377, 391 (1992) (“The First Amendment does not permit [the govern ment] to impose special pr ohibitions on those speakers who express views on disfavored subjects.” (citations omitted)).

13 Further, Professional Real Estate says that its sham-pe titioning test applies outside antitrust situations. 508 U.S. at 59 (“Whether applying Noerr as an antitrust doctrine or invoking it in other contexts , we have repeatedly re affirmed that evidence of anticompetitive intent or purpose alone cannot transform otherwise legitimate activity into a sham.” (emphasis added)). And other federal circuit courts have recognized this, adopting Professional Real Estate ’s test outside of antitrust cases. See, e.g. , Real Estate Bar Ass’n for Mass., Inc. v. Nat’l Real Estate Info. Servs. , 608 F.3d 110, 124–25 (1st Cir. 2010) (granting Petition Cl ause immunity from § 1983 litigation to a “nonfrivolous” but unsuccessful suit); Bryant v. Military Dep’t of Miss. , 597 F.3d 678, 691–94 (5th Cir. 2010) (same with various civil-rights suits); White v. Lee , 227 F.3d 1214, 1233 (9th Cir. 2000) (same with FHA litigation).19 B. Applying Professional Real Estate ’s Sham-Petitioning Test We review de novo the district court’ s decision to grant Appellees’ motion to dismiss. See Albers v. Bd. of Cty. Comm’rs , 771 F.3d 697, 700 (10t h Cir. 2014). On a motion to dismiss, courts “must accept al l the well-pleaded allegations of the complaint as true and . . . c onstrue them in the light most favorable to the plaintiff.” Id. (quoting Cressman v. Thompson , 719 F.3d 1139, 1152 (10th Cir. 2013)) (internal quotation mark omitted). Under this st andard, we conclude that Appellees’ petitioning was objectiv ely reasonable. At the outset, we note that Appellees’ losing in the Colorado district court and the Colorado Court of Appeals does not make their petitioning objectively unreasonable. As the Court discussed in BE & K , Petition Clause immunity applies “whenever [the petitioning] is genuine, not simply when it triumphs.” 536 U.S. at 532. So in determining whether Petition Cl ause immunity applies, we review the merits of the petitioning and, in doing so, look for litigation “so baseless that no reasonable litigant could realistically e xpect to secure favorable relief.” Prof’l Real
Estate , 508 U.S. at 62. We do not find that here. First, Appellees were partially successful in their appeal to the Board. On review, the Board agreed with Appellees that the PUD restricted CSMN’s clinical use to “outpatient,” not “inpatient .” CSMN tries to mitigate the importance of this ruling by claiming that it had always planned to provide only outpatient treatment and, thus, the Board’s limitation was meaningless. Though CSMN’s plan s identified only outpatient treatment, the fact remains that CSMN sought a PUD interpretation20 allowing for inpatient treatment. Whether th is was on accident or purposeful, had the Board not limited care to outpatient se rvices, CSMN could have operated an inpatient-treatment center in the future. This alone s hows that Appellees’ petitioning had some merit. Next, the history of the 2009 PU D amendment supported Appellees’ arguments to the Board and Colorado c ourt, showing their arguments were reasonable, though unsuccessful. With the 2009 amendments, Cordillera homeowners tried to clarify that new uses would not su bstantively change the PUD. So in 2009, when then-owner BHC proposed changing the PUD’s language to allow a “Medical Offices/Facility” on the Village and Lodge parcels, CPOA objected that the proposed use was “overbroad.” App. vol. 4 at 602. CPOA helped rewrite the provision, resulting in language finally adopted in the 2009 PUD—language that the homeowners believed was consistent with the PUD’s earlier-allowed uses. Thus, when CSMN bought the property in 201 6 and proposed closing the Lodge and Village parcels to the public and opening an addiction-treatment center, we can understand why the Cordillera homeowners woul d be surprised. In light of all their input leading to the 2009 PUD, Appe llees’ arguments that the new PUD interpretation improperly restricted the form erly public Lodge and Village parcels to private use make some sense. And while we agree with the state courts’ interpretation of the PUD, we conclude that Appellees’ c ontrary arguments in the Colorado courts were reasonable. The homeowners had a right to be concerned about a change to the properties’ uses—especially one that rest ricted public access to a traditionally-open21 community amenity—and to pres s for an interpretation th at would preserve public

access. Finally, we consider the state-court ru lings in determining whether the suits were objectively reasonable. The state dist rict court opinion is thorough and wellreasoned. Though the court cr iticized some of Appellees ’ legal arguments as making “little sense,” the court certainl y did not deem them frivolous. Id. at 610–11. Rather, both the district and appella te courts submitted lengthy opinions containing in-depth analysis, treating Appellees’ argument s as time-worthy though ultimately unpersuasive. In sum, we find that Appellees’ appeal s of the Director’s PUD interpretation were objectively reasonable, meaning th e sham exception does not apply. And because the appeals were objectively reasonable, 14 we need not consider Professional Real Estate ’s second step. C. The California Motor Sham Test CSMN presents an alternative basis for deeming Appellees’ petitioning a “sham”: it argues that Appellees filed a “series of petitions without regard to merit[s] and for the purpose of harming [CSMN’s] legal interest.” Opening Br. 31. Under California Motor , “a slew of ‘state a nd federal proceedings to resist and defeat applications by respondents to acquire operating rights or to transfer or register those

14 CSMN argues that it should be allowe d further discovery about the objective reasonableness of the appeals. But we can determine the objective reasonableness of the appeals by examining the c ourt filings and court rulings.22 rights’” constituted a “sham.” Waugh Chapel S., LLC v. United Food & Commercial Workers Union Local 27 , 728 F.3d 354, 363 (4th Cir. 2013) (quoting Cal. Motor , 404 U.S. at 509). Thus, “sham litigation occurs where ‘a pattern of baseless, repetitive claims . . . emerge[s] which leads the factfinder to concl ude that the administrative and judicial processes have been abused.’” Id. (omission and alteration in original) (quoting Cal. Motor , 404 U.S. at 513). We do not find this to be the case here. Appellees appeared before three tribunals: (1) the Board, (2) th e Colorado district court, a nd (3) the Colorado Court of Appeals (CPOA only). Each of these appeal s originated from the same case, meaning multiple suits were not brought on the sa me issue—instead, th e Appellees simply appealed. In fact, CMD did not even continue its appeal after losing in state district court. In contrast, the petitioners in California Motor repeatedly brought claims in both state and federal courts , trying to prevent compe titors from obtaining operating licenses. 404 U.S. at 509. Unlike in that ca se, Appellees here pur sued only a straight line of appeals. Given these considerations , we do not find that Appellees engaged in a series of lawsuits that were intended to abuse judicial processes. And thus, Appellees’ conduct does not qualify for the California Motor sham exception and Petition Clause immunity applies. II. Unlawful-Objective Exception CSMN asks us to adopt an unlaw ful-objective exception to Appellees’ “entitle[ment] to Petition Clause immunity .” Opening Br. 21 (ti tle case removed). Under its proposed exception, Petition Cl ause immunity would not apply to23 petitioning seeking an unlawful objective. To support this exception, CSMN relies on

a Bill Johnson’s footnote and two circuit court cases. 15 We decline to extend this test outside the labor-relations context. As discussed earlier, in Bill Johnson’s , the Court considered whether the NLRB could enjoin “an [ongoing] employer’s lawsuit that the fe deral law would not bar except for its allegedly retaliatory mo tivation.” 461 U.S. at 737 n.5. The Court concluded that it could not. Id. at 743 (“The filing and pr osecution of a well-founded lawsuit may not be enjoined . . . even if it would not have been commenced but for the plaintiff’s desire to re taliate against the defendant for exercising rights protected by the [NLRA].”). The Court contrasted that situati on with another, noting that the NLRB could enjoin a suit s eeking “an objective that is illegal under federal law.” Id. at 737 n.5 Recasting these two situations, we see the following: (1) an employer lawsuit with an improper motive (one that would be legal but for its improper motive), and (2) a lawsuit seeking an illegal objective. Under Bill Johnson’s , the NLRB could enjoin the second suit but not the first if that suit was objectiv ely reasonable. The

15 One of the cases CSMN cites, Premier Electrical Construction Co. v. National Electrical Contra ctors Association, Inc. , 814 F.2d 358 (7th Cir. 1987), does not apply here. It involved antitrust claims arising from conduct that sought “to use the courts to carry out pr ivate cartel agreements.” Id. at 374. So unlike Appellees here, who merely sought “a favorable rule of law,” the petitioners in Premier Electrical sought more, because “[t] here is no such thing as the lawful enforcement of a private cartel.” Id. at 376. Moreover, if Premier Electrical were decided today, Professional Real Estate would apply to its antitrust cl aims, with the same result, because a party cannot realistic ally expect success when asking a court to enforce a private cartel.24 first situation mirrors Professional Real Estate ’s sham-petitioning test, while the second situation applies that test to the labor-relations c ontext, announcing a per se rule that petitioning is objectively and subj ectively unreasonable if seeking an illegal objective. 16 So in resolving a labor dispute, Bill Johnson’s used the method that Professional Real Estate would adopt ten year s later. In fact, Professional Real
Estate recognized Bill Johnson’s when it fashioned its tw o-step sham-petitioning rule. 17 Given these considerations, we limit th e application of this per se unlawfulobjective rule to the Bill Johnson’s context, meaning it speaks only to what the NLRB must show to enjo in an ongoing lawsuit. Further, good reasons counsel against extending this per se rule beyond the labor-relations context. For st arters, the rule as sumes that a suit seeking an illegal objective is brought with improper motive. This would bypass a review of the

16 In International Longshoremen’s & Warehousemen’s Union v. NLRB , 884 F.2d 1407, 1414 & n.12 (D.C. Cir. 1989), th e D.C. Circuit recognized that its conclusion that a union had sought an illegal objective with its pe titioning meant that the union’s petitioning “ necessarily had an improper motive” and “ necessarily lacked a reasonable basis.” So ev en several years before Professional Real Estate was decided, courts were rec ognizing that the unlawful-obj ective exception contained both an objective a nd subjective prong.

17 In Professional Real Estate , the Supreme Court partly relied on Bill Johnson’s in concluding that “[o]ur decisions . . . establish that the legality of objectively reasonable petitioning ‘directed to ward obtaining governmental action’ is ‘not at all affected by any anticompetitiv e purpose [the actor ] may have had.’” Prof’l Real Estate , 508 U.S. at 59 (omission and second alteration in original) (quoting Noerr , 365 U.S. at 140). To reach this c onclusion, the Court noticed that Bill Johnson’s had used an “analogy to Noerr ’s sham exception . . . [to hold] that even an ‘improperly motivated’ lawsuit may not be enjoined under the [NLRA] as an unfair labor practice unless such lit igation is ‘baseless.’” Id. (quoting Bill Johnson’s , 461 U.S. at 743–44).25 plaintiffs’ subjective motivatio n, substituting a per se rule that lawsuits seeking an illegal objective are brought with improper in tent. But in practice, not all litigation seeking an illegal objective does so. 18 By adopting an unlawful-objective excep tion to Petition Clause immunity, we would eliminate immunity even in cases in which the pa rty petitioning for redress does so for benign reasons. We reject that result. Petition Clause immunity exists to promote access to the courts, allowing people to air thei r grievances to a neutral tribunal. In fact, “the ability to lawfully prosecute even unsuccessful suits adds legitimacy to the court system as a designate d alternative to force” and ensures that litigants can argue for “evolution of the law.” BE & K , 536 U.S. at 532. For instance, litigants might advocate in good faith for cha nges to laws, outside what is presently allowed. See, e.g. , Loving v. Virginia , 388 U.S. 1, 3–5 (1967) (seeking to validate a marriage that petitioners recognized was th en illegal under settl ed Virginia law). Applying an unlawful-objective exception in these circumstances could expose those parties to liability. Su ch a rule could stifle litigation and slow th e law’s development. We should promote development of the law, even when the result may be unpopular. “It is important to emphasize that a person’s speech or petitioning activity is not removed from the ambit of First Amendment protection simply because it advocates an unlawful act.” White v. Lee , 227 F.3d 1214, 1227 (9th Cir. 2000).

18 We question whether a per se unlaw ful-objective exception survives BE & K even under the NLRA. There, the Court st ressed the importance of looking at both objective reasonableness and subjective intent. BE & K , 536 U.S. at 526, 528.26 With the two-step sham test from Professional Real Estate , we strike the appropriate balance between protecting individuals’ First Amendment petitioning rights and preventing lawsuits th at are used to harass or discriminate against others. Both the subjective and objec tive components are necessary to protect important First Amendment rights. Adopting a categorical, unlawful-objective excep tion to the First Amendment’s right to petition the government for a redress of grievances would run the risk of imposing liability on indivi duals who seek to undermine what they consider unjust laws. So for these reasons , we reject adopti ng a broad unlawfulobjective exception to Petit ion Clause immunity. CONCLUSION For the above reasons, we reject CSMN’s proposed unlawful-objective exception to Petition Clause immunity and adopt Professional Real Estate ’s twoprong test for determining whether the sh am exception to Petition Clause immunity applies. Applying that test here, we affirm the district court and hold that Appellees engaged in objectively reasonable litigation, and thus, the Petition Clause immunizes their conduct.