Santa Fe Alliance v. City of Santa Fe

993 F.3d 802

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 30, 2021
• Docket: 20-2066
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 30, 2021

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

SANTA FE ALLIANCE FOR PUBLIC HEALTH AND SAFETY; ARTHUR FIRSTENBERG; MONIKA STEINHOFF,

Plaintiffs - Appellants,

v. No. 20-2066

CITY OF SANTA FE, NEW MEXICO; HECTOR H. BALDERAS, Attorney General of New Mexico; UNITED STATES OF AMERICA,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CV-01209-KG-JHR) _________________________________

Theresa Dawn Truitt Kraft, Salisbury, Maryland (Erika E. Anderson, The Law Offices of Erika E. Anderson, Albuquerque, New Mexico, and Jonathan Diener, Mule Creek, New Mexico, on the briefs), for Plaintiffs – Appellants.

Jack Starcher, Appellate Staff Civil Division Attorney (Ethan P. Davis, Acting Assistant Attorney General; John C. Anderson, United States Attorney; Scott McIntosh, Appellate Staff Civil Division Attorney, with him on the brief), U.S. Department of Justice, Washington, DC, for Defendant – Appellee United States of America.

Marcos D. Martinez, Senior Assistant City Attorney, Santa Fe, New Mexico, for Defendant – Appellee City of Santa Fe.

Neil R. Bell (Gregory Ara Chakalian on the brief), Office of the New Mexico Attorney General, Santa Fe, New Mexico), for Defendant – Appellee Hector H. Balderas. _________________________________ Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH, Circuit Judge. _________________________________

McHUGH, Circuit Judge. _________________________________

Plaintiffs/Appellants Santa Fe Alliance for Public Health & Safety, Arthur

Firstenberg, and Monika Steinhoff (collectively the “Alliance”) advance a bevy of

claims asserting Section 704 of the Telecommunications Act of 1996 (“TCA”), New

Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”),

the Amendments to Chapter 27 of the Santa Fe City Code (“Amendments to

Chapter 27”), and three proclamations by the Santa Fe mayor violate due process, the

Takings Clause, and the First Amendment. Through its amended complaint, the

Alliance contends the installation of telecommunications facilities—primarily

cellular towers and antennas—on public rights-of-way expose its members to

dangerous levels of radiation. The Alliance further contends these legislative and

executive acts prevent it from effectively speaking out against the installation of new

telecommunications facilities. The United States moved to dismiss under Federal

Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe (“Santa Fe”)

moved to dismiss under Rule 12(b)(6). The district court concluded that while the

Alliance pled sufficient facts to establish standing to assert its constitutional claims,

the Alliance failed to allege facts stating any constitutional claim upon which relief

could be granted. The district court dismissed the Alliance’s claims as against all

defendants, including Hector A. Balderas, the New Mexico Attorney General.

2 We affirm the district court’s dismissal of the Alliance’s constitutional claims,

albeit on partially different grounds. We hold the Alliance lacks standing to raise its

takings claim and its due process claims not premised on an alleged denial of notice.

This is because the alleged injuries supporting these claims are not “fairly traceable”

to the passage of the TCA, WCAIIA, the Amendments to Chapter 27, or the mayoral

proclamations. We further hold that while the Alliance satisfies the threshold for

standing as to its First Amendment claims and its procedural due process claim

premised on the WCAIIA and the Amendments to Chapter 27 denying it notice, the

district court properly dismissed these claims under Federal Rule of Civil Procedure

12(b)(6).

I. BACKGROUND

A. The Alliance’s Amended Complaint

The Alliance’s membership consists of Santa Fe residents concerned about the

health and environmental effects of radio-frequency emissions from

telecommunications facilities installed on public rights-of-way. The Alliance alleges

the radio-frequency emissions contain dangerous levels of radiation. The Alliance

further alleges that exposure to radio-frequency emissions resulted in its members

experiencing the following health problems: headaches, nausea, insomnia, tinnitus,

seizures, cancer, fatigue, neurological issues, respiratory issues, cardiac issues,

laryngospasms, numbness in extremities, high blood pressure, and internal bleeding.

As a result of installation of telecommunications facilities and the accompanying

exposure to radiation, many Alliance members have fled their homes, abandoned

3 their businesses, and either moved to remote sections of Santa Fe or taken up

residence in their vehicles. The increasing presence of telecommunications facilities

also constrains the ability of Alliance members to travel within Santa Fe city limits

and to access government buildings and governmental services. The Alliance

contends the impact from radio-frequency emissions will worsen as

telecommunications companies upgrade the network in Santa Fe from 4G to 5G and

as citizens retrofit their residences into smart homes.

The Alliance attributes some of the rapid growth in telecommunications

facilities on the public rights-of-way in Santa Fe to a series of federal, state, and local

legislative enactments, as well as the three proclamations by the mayor. The amended

complaint alleges the TCA precludes localities from regulating the placement and

construction of telecommunications facilities based on the “environmental effects” of

radio-frequency emissions. See 47 U.S.C. §§ 332(c)(7)(B)(iv). The Alliance contends

the New Mexico Legislature passed the WCAIIA, exempting the installation of new

telecommunications facilities on public rights-of-way from local land use review.

Further, the Alliance asserts that Santa Fe, through the Amendments to Chapter 27,

repealed (1) its land use regulations pertaining to radio-frequency emissions and

public rights-of-way; and (2) provisions requiring notice to the public before

installation of a telecommunications facility on a public rights-of-way. Finally, the

amended complaint alleges the Santa Fe mayor issued three proclamations,

suspending application of the Santa Fe Land Development Code to requests by

4 telecommunications companies to build telecommunications facilities. The Alliance

attributes the construction of seven short cell towers to the mayoral proclamations.

The Alliance filed a twenty-two-count amended complaint challenging the

legislation and the mayoral proclamations. The amended complaint names as

defendants the United States; Hector Balderas, the New Mexico Attorney General;

and Santa Fe.

Regarding the TCA, Count Eighteen raises a Fifth Amendment due process

claim, arguing Congress lacked the authority to (1) delegate authority to the Federal

Communications Commission (“FCC”) to be the sole regulatory authority over radio-

frequency emission levels; (2) preempt states and localities from adopting their own

regulations on radio-frequency emission levels; and (3) prohibit states from providing

legal remedies for injuries from radio-frequency emissions. Meanwhile, Count

Nineteen contends Section 704 of the TCA, by prohibiting local government officials

from relying upon any speech regarding the health impacts of radio-frequency

emissions when reviewing applications for new telecommunications facilities,

violates the First Amendment because it restricts the ability of the public to speak

about the health impacts of radio-frequency emissions. Finally, Count Four alleges

Section 704 of the TCA infringes the Alliance’s First Amendment right to petition

the government and access the courts.1

1 Additionally, Count Seventeen sought a declaration that the TCA did not preclude a locality from considering “health” effects when approving or denying the placement of telecommunications facilities because impacts on human health are not an “environmental effect” within section 332(c)(7)(B)(iv) of Title 47 of the United 5 The amended complaint advances four claims against the WCAIIA and the

Amendments to Chapter 27. Count One alleges Fourteenth Amendment due process

violations based on both provisions eliminating public notice requirements before

approval of a new telecommunications facility. Count Three raises a Fifth

Amendment Takings Clause claim, alleging the placement of radio-frequency

emitting telecommunications facilities on the public rights-of-way rendered homes

and businesses “uninhabitable and unusable.” App., Vol. I at 50. Count Four alleges

the WCAIIA and the Amendments to Chapter 27 infringe on the Alliance’s access to

courts and its ability to assemble and to petition the government, in violation of the

First Amendment. Finally, Count Twenty asserts the Amendments to Chapter 27

violate the Alliance’s First Amendment right to free speech because they precluded

the relevant city boards from regulating telecommunications facilities based on the

health effects of radio-frequency emissions.

Lastly, the Alliance raises one federal constitutional claim, Count Two,

relative to the mayoral proclamations, asserting a Fourteenth Amendment violation of

procedural and substantive due process. In support of this claim, the Alliance alleges

Santa Fe, in accord with the proclamations, signed contracts with a

telecommunications company permitting the installation of telecommunications

States Code. To the extent Count Seventeen advances a claim for relief rather than a mere legal argument supporting the Alliance’s other claims against the TCA, it is not a constitutional claim, for it does not invoke any constitutional provision.

6 facilities without any notice to the public and that operation of these facilities

endangers the life, liberty, and property interests of Alliance members.2

B. Procedural History

The United States filed a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1) and (b)(6), and the City of Santa Fe filed a motion to dismiss

under Rule 12(b)(6). The New Mexico Attorney General, meanwhile, preserved a

failure to state a claim defense in its answer to the Alliance’s amended complaint;

however, the New Mexico Attorney General never filed a Rule 12(b) motion to

dismiss.

Nine months after completion of briefing on the motions to dismiss, the district

court issued a memorandum opinion and order and a final judgment dismissing all

counts of the amended complaint as against all three defendants.3 The district court

2 Additional counts in the amended complaint raised claims under state law and the Santa Fe City Code. After concluding the Alliance failed to state any constitutional claims on which relief could be granted, the district court dismissed all constitutional claims and declined to assert supplemental jurisdiction. The Alliance does not contest the district court’s decision to decline supplemental jurisdiction over the non-federal claims. Counts Fifteen and Sixteen, about which the Alliance does not advance any specific arguments on appeal, sought general injunctive relief against the WCAIIA, the Amendments to Chapter 27, and the mayoral proclamations. 3 In issuing its memorandum opinion and order and final judgment, the district court committed two procedural errors. First, during the nine months between completion of briefing on the motions to dismiss and its ruling, the Alliance moved for a preliminary injunction and the parties completed briefing on this motion. The district court, however, did not acknowledge the pending preliminary injunction motion, neither ruling upon it nor explicitly terminating the Alliance’s motion. Second, although the New Mexico Attorney General never moved to dismiss under Rule 12(b)(6), the district court acted as though such a motion pended. This is problematic where the New Mexico Attorney General lacked any means for seeking 7 addressed the United States’ Rule 12(b)(1) motion first, concluding that while the

Alliance lacked standing to bring claims under any provision of the TCA, it satisfied

the standing threshold relative to its constitutional claims. Turning to the merits, the

district court first addressed the Alliance’s Fifth and Fourteenth Amendment due

process claims—Counts One, Two, and Eighteen. Relative to Santa Fe and the New

Mexico Attorney General, the district court concluded these actors did not violate the

Alliance’s procedural or substantive due process rights because the TCA preempted

state and local officials from considering the health effects of radio-frequency

emissions in compliance with FCC standards. Next, the district court analyzed the

Alliance’s Count Three takings claim relative to the WCAIIA and the Amendments

to Chapter 27, rejecting the claim on the ground that neither New Mexico nor Santa

Fe physically occupied or regulated the property of any Alliance member. The

dismissal at this juncture in the proceedings because (1) he waived the right to file a Rule 12(b) motion by filing an answer, see Fed. R. Civ. P. 12(b) (a motion asserting a Rule 12(b) defense “must be made before pleading if a responsive pleading is allowed”); see also 5B Charles Alan Wright & Arthur R. Miller, Fed. Practice and Procedure § 1357 at 408 (3d ed. 2004) (“Technically . . . a post-answer Rule 12(b)(6) motion is untimely and the cases indicate that some other vehicle, such as a motion for judgment on the pleadings or for summary judgment, must be used to challenge the plaintiff’s failure to state a claim for relief.”); and (2) a Rule 12(c) motion would have been premature because the pleadings were not closed where the other two defendants filed Rule 12(b) motions and had not filed answers, see Fed. R. Civ. P. 12(c) (“After the pleadings are closed . . . a party may move for judgment on the pleadings.” (emphasis added)); see also Gorenc v. Klaassen, No. 18-2403-DDC-JPO, 2019 WL 2523566, at *2 (D. Kan. Jun. 19, 2019) (collecting authorities standing for the proposition that the pleadings are not “closed” until all defendants file an answer). Although the Alliance mentions these two issues in its briefing, and we agree the district court erred, the Alliance does not seek relief in the form of remand.

8 district court then addressed the Alliance’s First Amendment claims, observing that

Alliance members frequently spoke against new telecommunications facilities and

holding the Alliance had not stated valid claims because (1) nothing in the TCA,

WCAIIA, or the Amendments to Chapter 27 regulated speech; and (2) the First

Amendment does not include the right to have local officials adopt a speaker’s

preferred position.

The Alliance timely appealed. The Alliance seeks review of the district court’s

dismissal of its constitutional claims. The United States, the New Mexico Attorney

General, and Santa Fe defend the district court’s dismissal of the Alliance’s amended

complaint, with the United States also reasserting its argument that the Alliance lacks

standing to bring its claims implicating the TCA.

II. DISCUSSION

We begin our analysis with the governing standard of review and an overview

of the relevant federal, state, and local laws pertaining to the regulation, approval,

and construction of new telecommunications facilities. Thereafter, we address

whether the Alliance satisfied the threshold for standing at the motion to dismiss

stage. Lastly, we turn to whether the claims that survive our standing analysis state a

claim upon which relief may be granted.

A. Standard of Review

Where a district court rules on a Federal Rule of Civil Procedure 12(b)(1)

motion without taking evidence, we apply a de novo standard of review. Safe Streets

All. v. Hickenlooper, 859 F.3d 865, 877 (10th Cir. 2017). We also “review a district

9 court’s rulings on Article III standing de novo.” Id. at 878 (internal quotation marks

omitted).

Similarly, this court reviews de novo a district court’s grant of a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). Albers v. Bd. of Cnty.

Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014). “[A]ll well-pleaded factual allegations

in the complaint are accepted as true and viewed in the light most favorable to the

nonmoving party.” Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)

(quotation marks omitted). A complaint must contain “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility 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, 556 U.S. 662, 678 (2009). “[A] well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of those facts

is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S.

at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

B. Relevant Laws Governing New Telecommunications Facilities

Three tiers of laws—federal, state, and local—regulate the development and

installation of telecommunications facilities. We describe aspects of each tier, as

relevant to this appeal.

1. Telecommunications Act of 1996

Congress enacted the TCA “to promote competition and higher quality in

American telecommunications services and to ‘encourage the rapid deployment of

10 new telecommunications technologies.’” City of Rancho Palos Verdes v. Abrams, 544

U.S. 113, 115 (2005) (quoting Telecommunications Act of 1996, Pub. L.

No. 104-104, purpose statement, 110 Stat. 56, 56 (1996)). To further this goal, the

TCA struck a balance between preserving “‘the traditional authority of state and local

governments to regulate the location, construction, and modification’ of wireless

communications facilities like cell phone towers” and creating uniform standards

governing new telecommunications facilities. T-Mobile S., LLC v. City of Roswell,

574 U.S. 293, 300–01 (2015) (quoting City of Rancho Palos Verdes, 544 U.S.

at 115). While the TCA did not infringe on a state’s or locality’s ability to enforce

zoning laws governing items such as boundary-line offsets and aesthetics, it did

impose “five substantive limitations” on the regulation of telecommunications

facilities. City of Arlington v. FCC, 569 U.S. 290, 294 (2013).

As highlighted by this appeal, one area of tension regarding the expansion of

wireless services has been public opposition to exposure to radiation from radio-

frequency emissions. Section 332(c)(7)(B)(iv) of Title 47 of the United States Code,

also referred to as Section 704 of the TCA, addressed the tension and possibility of

varying standards governing radio-frequency and radiation emissions from

community to community. The provision states:

No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC’s] regulations concerning such emissions.

11 47 U.S.C. § 332(c)(7)(B)(iv) (emphasis added). Consistent with this preference for a

uniform standard and delegation of authority, the FCC has promulgated regulations

establishing the maximum permissible level of radio-frequency, radiation emissions

from telecommunications facilities. 47 C.F.R. § 1.1310.

Recognizing that some localities might resist or subvert the limitation placed

on their ability to regulate radio-frequency emissions, the TCA requires that a

locality’s denial of a telecommunications company’s request to construct a

telecommunications facility “be in writing and supported by substantial evidence

contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). In enforcing this

requirement, the Supreme Court stated, “[i]n order to determine whether a locality’s

denial was supported by substantial evidence . . . courts must be able to identify the

reason or reasons why the locality denied the application.” T-Mobile S., LLC, 574

U.S. at 300. And where a locality fails to support its denial with substantial evidence,

the telecommunications company may seek redress in state or federal court.

47 U.S.C. § 332(c)(7)(B)(v).

2. Wireless Consumer Advanced Infrastructure Investment Act

Similar to the TCA, the WCAIIA restricts a locality’s ability to regulate some

telecommunications facilities.4 See N.M. Stat. Ann. § 63-9I-4(B). After enactment of

4 No party points us to a decision by a New Mexico court interpreting the WCAIIA, and we have not located such a decision. Accordingly, we rely exclusively on the WCAIIA’s text to understand its import relative to the regulation of new telecommunications facilities.

12 the WCAIIA, localities in New Mexico may no longer subject “small wireless

facilities”—cellular antennas and extensions with volume less than six cubic feet and

that are attached to and do not extend more than ten feet above an existing utility

pole or structure in a public right-of-way—to any local “zoning review or approval.”

N.M. Stat. Ann. § 63-9I-4(C); see also N.M. Stat. Ann. § 63-9I-2(P)(1) (defining

“small wireless facility”). Rather, unless a telecommunications company proposes to

place a “small wireless facility” in a “historic district” or a “design district,” a

locality, while able to impose fees for the permitting process and for access to the

public right-of-way, lacks the authority to preclude installation of the facility. See

N.M. Stat. Ann. §§ 63-9I-4(B), (D); see also N.M. Stat. Ann. § 63-9I-3(H).

3. Amendments to Chapter 27 of the Santa Fe City Code

In November 2016 and August 2017, the Santa Fe City Council passed

ordinances amending Chapter 27, the chapter governing telecommunications

facilities in public rights-of-way. As a result of these amendments, the City Code

establishes a system whereby telecommunications companies can apply for franchises

to erect telecommunications facilities on the public rights-of-way. Santa Fe City

Code § 27-2.4. A “director” reviews and negotiates the franchise applications before

submitting an application to the “governing body” for adoption. Id. at § 27-2.4(B).

Once the governing body adopts a franchise agreement, the telecommunications

company must pay Santa Fe 2% of its gross charges for services provided within

Santa Fe. Id. at § 27-2.5.

13 Regarding land use regulations, the August 2017 amendments established a

process for creating uniform standards governing new telecommunications facilities

on public rights-of-ways, phasing out facility-specific land-use-review at public

meetings:

the construction of new telecommunications facilities that conform to design parameters established from time to time by the land use department and are approved for use following a public hearing in the historic districts by the historic districts review board or outside the historic districts by the planning commission, provided that notice of the use of the approved design and of the proposed location is submitted to the city prior to commencement of the work and the city approves the proposed location of the facilities.

Id. at § 27-2.19(C). The Santa Fe City Code also recognizes the impact of the TCA,

stating, “[t]he planning commission may not regulate the placement of

telecommunications facilities on the basis of the environmental effects of radio

frequency emissions where such telecommunications facilities comply with 47 C.F.R.

1.1310 et seq.” Id. at § 27-2.19(E)(3).

C. Standing5

First, we outline the law governing the threshold inquiry of standing. Then, we

apply this governing body of law to each type of claim raised by the Alliance.

5 The Alliance contends this court cannot consider standing relative to its constitutional claims because the district court concluded the Alliance satisfied the standing threshold and the United States did not file a cross-appeal. This argument ignores well-established, black-letter law. The issue of Article III standing implicates federal jurisdiction and is a matter this court must consider sua sponte. Rector v. City & Cnty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003).

14 1. Governing Law

We address standing on a claim-by-claim basis; a plaintiff may have standing

to bring some, but not all, claims raised in a complaint. See Horstkoetter v. Dep’t of

Pub. Safety, 159 F.3d 1265, 1279 (10th Cir. 1998). The Alliance, as the plaintiff

invoking the federal court’s jurisdiction, “bears the burden of establishing standing as

of the time [it] brought this lawsuit and maintaining it thereafter.” Carney v Adams,

141 S. Ct. 493, 499 (2020). To sustain this burden, a plaintiff must allege it has

“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

Our analysis here focuses on the first and second requirements from Spokeo.

On the first requirement, “[t]o establish injury in fact, a plaintiff must show that [it]

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). An injury is

“concrete” if it “actually exist[s]” and is “‘real’” rather than “‘abstract.’” Id. (quoting

Webster’s Third New International Dictionary 472 (1971)). “For an injury to be

‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id.

(quoting Lujan, 504 U.S. at 560). An injury is “imminent” if it is “certainly

impending.” Clapper v Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (first quoting

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010), then quoting

Lujan, 504 U.S. at 565 n.2).

15 On the second requirement, to show that an injury is “fairly traceable” to the

challenged conduct, a plaintiff must allege “a substantial likelihood that the

defendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v. Gandy,

416 F.3d 1149, 1156 (10th Cir. 2005). As part of this showing, a plaintiff must

establish that its injury was “not the result of the independent action of some third

party not before the court.” Id. (quoting Lujan, 504 U.S. at 560). This showing,

however, does not require a plaintiff to establish that the defendant was the proximate

cause of its injury. Id. Nor does it require a showing that a “defendant’s actions are

the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 169

(1997). Rather, at the motion to dismiss stage, a plaintiff can satisfy the “fairly

traceable” requirement by advancing allegations which, if proven, allow for the

conclusion that the challenged conduct is a “but for” cause of the injury. Petrella v.

Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012) (citing Duke Power Co. v.

Carolina Env’t Study Grp., Inc., 438 U.S. 59, 74–78 (1978)).

2. Application

a. Takings claim

“The Takings Clause of the Fifth Amendment, made applicable to the States

through the Fourteenth, provides that private property shall not be taken for public

use, without just compensation.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536

(2005) (citation and quotation marks omitted). In Count Three, the Alliance contends

the WCAIIA and the Amendments to Chapter 27, by facilitating the placement of

16 telecommunications facilities on the public rights-of-way, effect a taking of its

members’ homes and businesses. Specifically, the Alliance alleged that its members:

are already refugees from cell towers and antennas and have already lost previous homes and businesses due to their proximity. The award of franchises by the City, and their exemption from land use regulations by the State, for the placement of wireless telecommunications facilities on the sidewalk directly in front of Plaintiffs’ homes and businesses will render their present homes and businesses similarly uninhabitable and unusable and is an unlawful confiscation of property without compensation.

App., Vol. I at 50.

As an initial matter, to the extent the Alliance seeks redress for alleged future

losses of homes and business, the taking had not occurred at the time the Alliance

filed its amended complaint. Thus, any injury is speculative. And even if the

placement of telecommunications facilities on public rights-of way could constitute a

taking of adjoining private property, no just compensation was due to any particular

individual for a yet-to-occur taking. See Miller v. Campbell Cnty., 945 F.2d 348, 354

n.9 (10th Cir. 1991) (concluding taking did not occur when county passed resolution

that would lead to taking of home but “rather the taking occurred when the plaintiffs

were actually required permanently to vacate their premises”); see also SK Fin. SA v.

La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1278 (10th Cir. 1997) (takings

claim not ripe until denial of property right is final). Therefore, we lack jurisdiction

to consider Count Three relative to future takings. See Nat’l Park Hosp. Ass’n v.

Dep’t of Interior, 538 U.S. 803, 808 (2003) (“The ripeness doctrine is ‘drawn both

from Article III limitations on judicial power and from prudential reasons for

17 refusing to exercise jurisdiction.’” (quoting Reno v. Catholic Soc. Servs., Inc., 509

U.S. 43, 57 n.18 (1993))).

Turning to the aspect of Count Three based on Alliance members already

leaving their homes and business, here the Alliance alleges a specific injury that

satisfies the first requirement for standing stated in Spokeo. However, the Alliance

has not satisfied the second Spokeo requirement—that the injury is “fairly traceable”

to the WCAIIA and the Amendments to Chapter 27. While these two legislative acts

made it slightly easier for telecommunications companies to obtain approval to

construct new telecommunications facilities, the Alliance fails to allege facts capable

of showing that “but for” these two legislative acts Santa Fe would not have

approved the construction of the telecommunications facilities at issue. Notably, the

Alliance does not allege members of the Santa Fe boards in charge of land use and

zoning/planning were prepared to deny approval for new telecommunications

facilities in the absence of the adoption of the WCAIIA and the Amendments to

Chapter 27. Put another way, the allegations in the amended complaint do not create

a substantial likelihood that construction of the telecommunications facilities causing

Alliance members to leave their homes and businesses would not have occurred but

for passage of the WCAIIA and the Amendments to Chapter 27. Therefore, we hold

the Alliance failed to allege facts capable of satisfying the second requirement for

standing under Spokeo.

18 b. Due process claims

Count One alleges the WCAIIA and the Amendments to Chapter 27 violate

procedural and substantive due process. The substantive due process aspect of this

claim hinges on the Alliance’s contention that newly constructed telecommunications

facilities present a threat to the health, life, and property of Alliance members. For

the same reasons the Alliance’s takings claim based on completed takings fails to

satisfy the second Spokeo requirement for standing, so too does the substantive due

process aspect of Count One. Simply put, no allegation in the amended complaint

supports the inference Santa Fe would not have approved new telecommunications

facilities absent passage of the WCAIIA and the Amendments to Chapter 27.

We, however, reach a different conclusion as to the procedural due process

aspect of Count One. The Alliance alleged that, as a result of these legislative acts, its

members no longer receive notice prior to the approval of a specific

telecommunications facility. This in turn, the Alliance alleges, deprives its members

of an opportunity to be heard in opposition to further development of

telecommunications facilities. While we discuss in Section III(D)(1) whether the Due

Process Clause entitles the Alliance to the notice and opportunity to be heard it seeks,

there can be no question the WCAIIA and the Amendments to Chapter 27 have

directly altered the process used by Santa Fe to approve new telecommunications

facilities. Specifically, the WCAIIA limits the ability of localities to regulate “small

wireless facilities” in the public rights-of-way. N.M. Stat. Ann. § 63-9I-4(B), (C); see

also N.M. Stat. Ann. §63-9I-3(H). And the Amendments to Chapter 27 altered Santa

19 Fe’s process for approving telecommunications facilities—creating a streamlined

process where Santa Fe peremptorily adopts guidelines for telecommunications

facilities rather than reviewing individual applications for the construction of new

facilities at meetings open to the public. Santa Fe City Code § 27-2.19(C). Therefore,

the Alliance has satisfied the standing requirements relative to its Count One claim

that the WCAIIA and the Amendments to Chapter 27 deprive its members of notice

and an opportunity to be heard.

Turning to Count Eighteen, there the Alliance raises a procedural and

substantive due process claim against the TCA. The Alliance alleges the TCA, by

giving authority to the FCC to regulate radio-frequency emissions, preempts state and

local regulation of those emissions, as well as the ability of state and local authorities

to provide legal remedies for injuries attributable to radio-frequency, radiation

emissions. We hold the Alliance lacks standing to advance this claim. The claim is

contingent on New Mexico and/or Santa Fe, in the absence of the TCA, regulating

radio-frequency emissions to a greater degree than the FCC does through 47 C.F.R.

§ 1.1310. But no allegations in the amended complaint make such an inference

plausible. In fact, the amended complaint contains allegations suggesting New

Mexico, although possessing knowledge about the dangers of radio-frequency

emissions prior to passage of the TCA, did not enact measures to protect its citizens

from radiation emanating from telecommunications facilities. See App., Vol. I at 13

(alleging that New Mexico has known for forty years that radio-frequency emissions

are injurious). Accordingly, the amended complaint does not support the inference

20 that but for the TCA, Alliance members could successfully bring suit for injuries they

attribute to radio-frequency emissions.6

Finally, in Count Two, the Alliance contends that three mayoral proclamations

violated procedural and substantive due process by allowing for the construction of

new telecommunications facilities without notice to the public. As background

specific only to this count, in November 2017, the mayor declared an “emergency” in

Santa Fe based on “insufficient telecommunications capacity.” The proclamation

authorized Santa Fe officials to “work with Verizon Wireless to install temporary

and/or mobile wireless telecommunications facilities on City property pending

review and approval of fixed wireless facilities within the City.” App., Vol. I at 138.

In December 2017, the mayor issued a second proclamation and a third proclamation,

which are nearly identical to the November 2017 proclamation.

6 The concurrence concludes we set “too high a barrier for most plaintiffs to ever satisfy” and we “insulate the federal government’s efforts to materially shape the decisions of local governments.” Concurrence Op. at 2. We are not unsympathetic to the concurrence’s concern about shielding federal legislation from review where a local government, rather than the federal government, is the final actor. But we do not review the amended complaint in a vacuum where local governments have always been constrained by the TCA. Not only, as the concurrence suggests, could the Alliance have alleged that local decision makers were inclined to reject applications for new telecommunications facilities absent the TCA but the Alliance also could have alleged instances, pre-TCA, where local officials, either in Santa Fe or elsewhere, rejected applications for new telecommunications facilities based on health effects. The amended complaint, however, alleges neither. Thus, we are left to speculate whether any local board would conclude the harms from the health effects alleged by the Alliance outweigh a community’s needs for and the benefits stemming from upgraded wireless communication services. 21 We conclude the Alliance lacks standing to advance its substantive due

process claim based on the mayoral proclamations. Although the mayoral

proclamations may have expedited the construction of certain telecommunications

facilities, there is nothing in the amended complaint allowing for the inference that

the same or similar facilities would not have been constructed but for the mayoral

proclamations. Rather, the amended complaint repeatedly contends

telecommunications facilities will be virtually everywhere, at least in urban settings,

as the country transforms to a 5G network. The amended complaint goes so far as to

allege that each wireless carrier operating in an area plans to install cellular towers

“every 100 meters in every urban area in the world.” Id. at 14. Thus, it cannot be said

that the mayoral proclamations are the “but for” cause of the construction of new

telecommunications facilities and the Alliance’s members’ accompanying exposure

to radio-frequency emissions.

We also conclude the Alliance lacks standing to advance its procedural due

process claim based on the mayoral proclamations. On this claim, we hold the

Alliance fails to allege an injury fairly traceable to the mayoral proclamation. As

alleged in Count One, the August 2017 Amendments to Chapter 27 eliminated notice

and hearing requirements for the approval of specific new telecommunications

facilities. Therefore, the mayoral proclamations could not have produced any further

injury regarding the elimination of notice and hearing requirements. In this sense, the

Alliance cannot allege either an injury from the mayoral proclamations or that any

lack of notice is fairly traceable to the proclamations.

22 c. First Amendment claims

In Count Four, the Alliance alleges the TCA, the WCAIIA, and the

Amendments to Chapter 27 all infringe on its members’ First Amendment right to

petition the government by foreclosing the ability of local officials to consider their

arguments about the health effects of exposure to radio-frequency emissions. Count

Nineteen alleges the TCA infringes the First Amendment free speech rights of

Alliance members because local officials have relied on the TCA to ignore and reject

health-effect-related speech against new telecommunications facilities. Finally, in

Count Twenty the Alliance alleges the Amendments to Chapter 27 violate its

members’ freedom of speech rights because the Amendments formally adopt the

TCA’s delegation of regulation of radio-frequency emissions to the FCC.

Although we address whether any of these counts state a claim upon which

relief can be granted in Sections III(D)(3), (4), we conclude here that the Alliance

advanced sufficient allegations to satisfy the standing requirements. Specifically, the

Alliance cites to particular limitations in both the TCA and the Amendments to

Chapter 27 precluding local officials from adopting the Alliance’s preferred position

on radio-frequency emissions. Thus, if a party could advance a First Amendment

claim based on government officials not adopting a particular spoken position, then

the Alliance alleged an injury fairly traceable to the aforementioned legislative acts,

an injury which this court could remedy by striking down the acts.

23 3. Summary

In summation, we hold the Alliance failed to allege facts satisfying the

standing requirements as to its (1) Count Three takings claim; (2) Count One

substantive due process claim; (3) Count Eighteen procedural and substantive due

process claims; and (4) Count Two procedural and substantive due process claims.7

We, however, hold the Alliance has, for purposes of the motion to dismiss stage,

satisfied the standing requirements as to its (1) Count One, procedural due process

claim; (2) Count Four, First Amendment, right to petition claim; (3) Count Nineteen,

First Amendment, free speech claim; and (4) Count Twenty, First Amendment, free

speech claim.

D. Rule 12(b)(6) Analysis

We analyze each of the claims surviving our standing inquiry under Federal

Rule of Civil Procedure 12(b)(6), concluding the Alliance has not stated any claim upon

which relief may be granted.

1. Count One Procedural Due Process Claim

As a refresher, in Count One, the Alliance alleges the WCAIIA and the

Amendments to Chapter 27 violate its members’ procedural due process rights by

7 Where we affirm the dismissal of these claims for lack of standing rather than for failure to state a claim, the dismissal must transform from a dismissal with prejudice to a dismissal without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“Since standing is a jurisdictional mandate, a dismissal with prejudice for lack of standing is inappropriate, and should be corrected to a dismissal without prejudice.”). And it is in the purview of the district court to alter its judgment to reflect this change such that we remand to the district court for that limited purpose. See id. at 1219–20. 24 eliminating notice and hearing requirements prior to approval of new telecommunications

facilities. Both the WCAIIA and the Amendments to Chapter 27 involve local control

over zoning and land use. Moreover, the WCAIIA and the Amendments to Chapter 27

are also legislative acts. See Onyx Props. LLC v. Bd. of Cnty. Comm’rs of Elbert Cnty.,

838 F.3d 1039, 1045–46 (10th Cir. 2016) (stating that “the adoption of a general zoning

law is a legislative act” and “adoption of a general zoning ordinance is legislative

action”). Long ago, “the Supreme Court held that constitutional procedural due process

does not govern the enactment of legislation.” Id. (citing Bi-Metallic Inv. Co. v. State Bd.

of Equalization, 239 U.S. 441, 445 (1915)). This is sufficient to foreclose the

Alliance’s Count One procedural due process claim, and we affirm the district court’s

Rule 12(b)(6) dismissal of the claim.8

8 Even if the Amendments to Chapter 27 were not legislative acts and could be subjected to a procedural due process challenge, the Amendments merely streamlined the procedures for approving new telecommunications facilities by enacting a system whereby Santa Fe adopted preset requirements governing new telecommunications facilities rather than approving such facilities one at a time. Santa Fe City Code § 27-2.19(C). Thus, even after the Amendments, Alliance members retained the ability to speak against new telecommunications facilities at meetings adopting or modifying the preset regulations governing those facilities. See Onyx Props. LLC v. Bd. of Cnty. Comm’rs of Elbert Cnty., 838 F.3d 1039, 1045–47 (10th Cir. 2016) (observing due process does not necessitate individual hearings on enforcement of legislative acts, including municipal-wide zoning regulations); see also Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981) (“[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”). Accordingly, while the Amendments may have decreased the number of hearings on the matter, they did not eliminate all hearings on the regulation of new telecommunications facilities.

25 2. Count Four Right to Petition Claim

In Count Four, the Alliance alleges the TCA, the WCAIIA, and the

Amendments to Chapter 27 infringe its members’ First Amendment right to petition

the government because local officials cannot adopt their position in opposition to

radio-frequency emissions and because its members cannot prevail in a legal claim

seeking compensation for injuries allegedly attributable to radio-frequency

emissions. In pertinent part, the First Amendment states: “Congress shall make no

law . . . abridging . . . the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” U.S. Const., amend. I. “The right to

petition allows citizens to express their ideas, hopes, and concerns to their

government and their elected representatives. . . .” Borough of Duryea v. Guarnieri,

564 U.S. 379, 388 (2011). To further this goal, the right to petition “extends to all

departments of the Government” and includes the “right of access to the courts.” Cal.

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). But “the text of

the First Amendment [does not] speak in terms of successful petitioning—it speaks

simply of ‘the right of the people . . . to petition the Government for a redress of

grievances.’” BE & K Const. Co. v. NLRB, 536 U.S. 516, 532 (2002) (omission in

original) (quoting U.S. Const. amend. I).

To be sure, the Alliance alleges the relevant legislative acts prevent its

members from succeeding on any of its efforts to petition the Santa Fe government

regarding the health effects of radio-frequency emissions, but the amended complaint

never identifies a provision of the TCA, WCAIIA, or the Amendments to Chapter 27

26 precluding any individual from, or penalizing any individual for, petitioning the

government regarding radio-frequency emissions. Nor could the Alliance identify any

such provision, as none exists. And the case law uniformly rejects the contention that

the First Amendment guarantees any success when petitioning, rendering the

Alliance’s Count Four First Amendment claim frivolous. See CSMN Invs., LLC v.

Cordillera Metro. Dist., 956 F.3d 1276, 1285 (10th Cir. 2020) (“In fact, the framers

recognized this in the First 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 people . . . to petition the Government for redress of grievances.”’” (quoting BE

& K, 536 U.S. at 532 (quoting U.S. Const. amend. I))). Accordingly, we affirm the

district court’s Rule 12(b)(6) dismissal of this claim.

3. Counts Nineteen and Twenty First Amendment Free Speech Claims

In Count Nineteen, the Alliance alleges the TCA restricts its members’ First

Amendment right to free speech. And Count Twenty alleges the Amendments to

Chapter 27 likewise restrict its members’ First Amendment right to free speech.

Under the First Amendment, “Congress shall make no law . . . abridging the freedom

of speech.”9 U.S. Const. amend. I. Simply put, nothing in the TCA or the

Amendments to Chapter 27 punishes, restricts, or prohibits any individual from

9 Through the Fourteenth Amendment, the prohibition on government abridging the right to free speech has been incorporated to cover state and local governmental action. See Schneider v. State of N.J., Town of Irvington, 308 U.S. 147, 160 (1939).

27 speaking against radio-frequency emissions.10 Accordingly, Counts Nineteen and

Twenty of the amended complaint do not advance plausible claims, and we affirm the

district court’s Rule 12(b)(6) dismissal of them.

III. CONCLUSION

We affirm the district court’s dismissal of the Count One procedural due

process claim and the claims advanced in Counts Four, Nineteen, and Twenty

because, while the Alliance satisfied standing requirements at the motion to dismiss

stage, none of the claims allege facts upon which relief may be granted. We further

10 The Alliance argues it fears that if its members speak out against radio- frequency emissions at a hearing on a new telecommunications facility and Santa Fe does not approve construction of the new facility, a court, in resolving a suit by a telecommunications company, might attribute the denial of approval to public comments about the health effects of radio-frequency emissions. This argument is fallacious for three reasons. First, this asserted fear has not inhibited Alliance members from speaking at public hearings, for the amended complaint alleges Alliance members “have participated in every approval process and have testified to their injuries and losses at every public hearing for every proposed telecommunications ordinance and every proposed telecommunications facility in Santa Fe from 2005 until the present day.” App., Vol. I at 36. Second, as the Alliance contends in other counts of its amended complaint, the Amendments to Chapter 27 eliminated hearings on specific new telecommunications facilities. Third, under the TCA and applicable Supreme Court precedent, any court reviewing a locality’s denial of approval for a new telecommunications facility has no need to attribute the denial to particular public comments never adopted by the local officials. Rather, a locality’s mere failure to document its reasons for denying an application to build a telecommunications facility entitles the telecommunications company to relief. See 42 U.S.C. § 332(c)(7)(B)(iii) (requiring that the denial of an application “be in writing and supported by substantial evidence contained in a written record”); see also T-Mobile S., LLC v. City of Roswell, 574 U.S. 293, 300 (2015) (“In order to determine whether a locality’s denial was supported by substantial evidence . . . courts must be able to identify the reason or reasons why the locality denied the application.”).

28 affirm the district court’s dismissal of the Count One substantive due process claim

and the claims in Counts Two, Three, and Eighteen on the alternative ground that the

Alliance failed to satisfy the threshold standing requirements to advance these claims.

We remand to the district court for the limited purpose of modifying its judgment to

reflect that these claims are dismissed without prejudice.

29 No. 20-2066, Santa Fe Alliance v. City of Santa Fe LUCERO, J., concurring

Though I agree with the bulk of the majority’s analysis, I write separately to note

my respectful disagreement concerning the Alliance’s standing to raise claims against the

TCA. Because the TCA limits the decision-making discretion of state and local

policymakers in a manner substantially likely to have produced the decisions and policies

that caused the Alliance’s alleged injuries, I would hold that the Alliance has standing to

challenge the statute. The majority’s holding to the contrary effectively allows the

federal government to evade review by restricting the discretion of state and local

officials and then claiming that the ultimate decision was the officials’ alone. Rather than

create such a loophole, I would affirm on the basis of sovereign immunity.

As the majority explains, the TCA prohibits state and local governments from

regulating telecommunications facilities “on the basis of the environmental effects of

radio frequency emissions.” 47 U.S.C. § 332(c)(7)(B)(iv). Included within the category

of “environmental effects” are harms to human health, such as the cancers and seizures

that the Alliance asserts its members have suffered due to radio frequency emissions.

Because of the TCA prohibition, the regulations challenged by the Alliance could not

have been otherwise on the basis of the harms the Alliance alleges.

Though the TCA forecloses considering these significant environmental effects,1

the majority sees no reason to believe that state and local decision-makers would have

1 We assume these effects are real at the motion to dismiss stage. See Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016). paid them any mind in the absence of the TCA’s fetters. The majority concludes that

because there are “no allegations in the amended complaint [that] make such an inference

plausible,” the Alliance lacks standing to challenge the TCA.

To establish standing, a plaintiff must allege “a substantial likelihood that the

defendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v. Gandy, 416

F.3d 1149, 1156 (10th Cir. 2005). The Alliance meets this burden. It is substantially

likely that if radio frequency emissions cause widespread and severe environmental

harms, state and local decision-makers would regulate telecommunications facilities

differently if not for the TCA. To hold otherwise because the Alliance cannot point to

evidence from New Mexico or Santa Fe officials affirmatively declaring they would

hypothetically regulate differently in the absence of the TCA is too high a barrier for

most plaintiffs to ever satisfy. It also creates a loophole by which the federal government

can significantly constrain local governmental decision-making, then escape judicial

review of those constraints by arguing the ultimate decision was the local government’s

and may have been the same even without the constraints. We should not insulate the

federal government’s efforts to materially shape the decisions of local governments from

harms that those efforts plausibly bring about.

Though I would hold that the Alliance has standing to bring claims based on the

TCA, I would also hold that those claims fail due to federal sovereign immunity.

Sovereign immunity is a general shield for suits brought against the United States, its

agencies, and its officers. No one may “pursue a suit against the Federal Government

absent a congressional waiver of immunity.” Wyoming v. United States, 279 F.3d 1214,

2 1225 (10th Cir. 2002). In the only potentially relevant exception to that broad shield,

Congress waived sovereign immunity for “[a]n action in a court of the United States

seeking relief other than money damages and stating a claim that an agency or an officer

or employee thereof acted or failed to act in an official capacity or under color of legal

authority.” 5 U.S.C. § 702 (emphasis added). Nowhere in the Alliance’s claims is it

alleged that any agency or officer of the United States acted or failed to act. The named

federal defendant is the United States in its entirety. The TCA is enforced by the FCC,

but there is no allegation that the FCC played any role in the events that led to this suit.

Under the plain text of § 702, the Alliance’s claims do not fit within that waiver of

sovereign immunity. See Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 187 (D.C.

Cir. 2006) (“[T]he [statute] . . . refer[s] to a claim against an ‘agency’ and hence waives

immunity only when the defendant falls within that category . . . .”).

Because I would affirm the district court’s dismissal of the TCA-based claims on

grounds other than those relied on by the majority, I respectfully concur.