Britton v. Keller

B
                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               March 15, 2021
                         _________________________________
                                                                              Christopher M. Wolpert
                                                                                  Clerk of Court
 MARCY BRITTON,

       Plaintiff - Appellant,
                                                                No. 20-2054
 v.                                                (D.C. No. 1:19-CV-01113-KWR-JHR)
                                                             (D. New Mexico)
 MAYOR TIM KELLER; DANNY
 NEVAREZ; CITY OF ALBUQUERQUE,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH,
Circuit Judge.
                  _________________________________


       The City of Albuquerque, New Mexico (the “City”), has a “trap, neuter, release”

(“TNR”) program for feral cats. The program involves catching, vaccinating, and

sterilizing feral cats, then releasing them. The feral cats are supposed to be released

where they were caught, but Marcy Britton alleges they are sometimes released

elsewhere in the city. This, she claims, has resulted in a colony of feral cats on or near her

property. She sued the City, the mayor of the City, Tim Keller, and the director of the


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
City’s Animal Welfare Department, Danny Nevarez, under 42 U.S.C. § 1983, alleging

the TNR program has worked a taking of her property. She also sued under the New

Mexico Constitution and state tort law. The district court dismissed her operative,

amended complaint, holding (1) the TNR program could not constitute a taking as a

matter of law; (2) Ms. Britton had not alleged sufficient facts to demonstrate a taking

even if it could; and alternatively holding (3) the individual defendants were entitled to

qualified immunity. The district court also declined to exercise supplemental jurisdiction

over the state law claims. Ms. Britton appeals. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                 I.   BACKGROUND

                                  A. Factual History1

       The City operates a TNR program by which feral felines are trapped, sterilized,

and vaccinated. Although they are supposed to be released where originally trapped, cats

are sometimes released at a “new location unfamiliar to the cat regardless of whether the

appropriate care or sustenance exists at that location and without regard to impacts to

property values, or damage to private property.” App. at 7. Mr. Keller “has directed the

TNR program to continue” and Mr. Nevarez “orders that the cats continue to be

dumped.”

Id. 1

        Because this appeal concerns a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the facts are those alleged in the operative complaint, which are
presumed to be true in this procedural posture. See Smallen v. The W. Union Co., 

950 F.3d 1297

, 1305 (10th Cir. 2020).

                                             2
       Ms. Britton has “a real property interest in certain real estate located in the City.”

Id. at 6.

The feral cats were released “in the vicinity of the property in question.”

Id. at 132

(quoting Ms. Britton’s response to the motion to dismiss

, id. at 97).

The cats then

established a feral cat colony “residing near, or at times, on, [Ms. Britton’s] property,”

risking her exposure to diseases carried by the cats as well as damage to her property

from the cats’ excrement and urine. Id. (quoting

id. at 97).

The feral cat colony near or on

Ms. Britton’s property has contained “dozens, if not tens of dozens, of feral cats” over

time, which enter or soil her property.

Id. at 7.

On one occasion, a party preparing to

make an offer to purchase Ms. Britton’s property decided not to do so because of the feral

cats. Ms. Britton believes the “property will now appraise for less tha[n] she purchased

[it] for as a result of” the TNR program.

Id. at 7–8.

                                  B. Procedural History

       Ms. Britton filed suit in the United States District Court for the District of New

Mexico. Her amended complaint contained two counts. In Count I, brought under 42

U.S.C. § 1983, she alleged the TNR program worked a taking of her property in violation

of the United States Constitution. Ms. Britton also argued in Count I that this conduct

violated the New Mexico Constitution. In Count II, she alleged trespass and nuisance

under New Mexico tort law. The City moved to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6).2 It argued Ms. Britton had not alleged facts sufficient to show a



       2
       All relevant documents were jointly filed by the three defendants. We attribute
arguments common to all defendants to the City.

                                               3
violation of the Takings Clause or to show the individual defendants were liable

personally for the violation, and that the individual defendants were entitled to qualified

immunity. It also argued the state law claims should be dismissed on sovereign immunity

grounds and because the facts were insufficient to show a nuisance. Ms. Britton opposed

the motion.

       The district court granted the motion to dismiss. It held “feral cat colonies do not

constitute government occupation of [Ms. Britton’s] property,” and the government’s

actions in administering the TNR program could not legally constitute a taking because

any injury “was incidental” to the exercise of “police powers” and did not take the

“property for public use.”

Id. at 133–4.

Employing the framework of Penn Central

Transportation Co. v. City of New York, 

438 U.S. 104

(1978), the district court

alternatively held that Ms. Britton’s allegations did not state a plausible regulatory taking

because “the character of the regulation outweighs any economic impact, even if severe,”

and that her allegations did not “raise a plausible claim that government actions resulted

in a reduction in value of her property.” App. at 138. Additionally, the district court held

the individual defendants were entitled to qualified immunity because Ms. Britton had

not sufficiently pleaded their personal involvement or shown any constitutional violation

was clearly established. Finally, the district court declined to exercise supplemental

jurisdiction over the state law claims. The district court entered judgment dismissing the

§ 1983 claim with prejudice and the state law claims without prejudice. Ms. Britton

timely filed a notice of appeal.



                                              4
                                 II.   DISCUSSION

       We review de novo a district court’s grant of a motion to dismiss, taking as true

the well-pleaded allegations in the complaint. Smallen v. The W. Union Co., 

950 F.3d 1297

, 1305 (10th Cir. 2020).

                                 A. Legal Background

       The Fifth Amendment to the United States Constitution proscribes taking of

private property “for public use, without just compensation.” U.S. Const. amend. V; see

also Alto Eldorado P’ship v. Cnty. of Santa Fe, 

634 F.3d 1170

, 1173 (10th Cir. 2011)

(noting that the Takings Clause applies against state and municipal entities via

incorporation through the Fourteenth Amendment). “The paradigmatic taking requiring

just compensation is a direct government appropriation or physical invasion of private

property.” Lingle v. Chevron U.S.A. Inc., 

544 U.S. 528

, 537 (2005).

       But “[r]egulation of private property may be so onerous that it violates the Takings

Clause of the Fifth Amendment and requires the government to provide compensation.”

Ramsey Winch Inc. v. Henry, 

555 F.3d 1199

, 1208 (10th Cir. 2009). A per se regulatory

taking occurs where “government requires an owner to suffer a permanent physical

invasion of her property” or a regulation “completely deprive[s] an owner of ‘all

economically beneficial us[e]’ of her property.” 

Lingle, 544 U.S. at 538

(quoting Lucas v.

S.C. Coastal Council, 

505 U.S. 1003

, 1019 (1992) (emphasis in Lucas, second alteration

in Lingle)).

       Otherwise, a regulation may create a taking under standards the Supreme Court set

forth in Penn Central. See Ramsey 

Winch, 555 F.3d at 1208

. “The major factors under the

                                             5
Penn Central inquiry are (1) ‘[t]he economic impact of the regulation on the claimant,’

(2) ‘the extent to which the regulation has interfered with distinct investment-backed

expectations,’ and (3) ‘the character of the governmental action.’”

Id. at 1210

(quoting

Penn 

Cent., 438 U.S. at 124

) (alteration in original, italicization added). “The Penn

Central inquiry focuses on the magnitude of the economic impact of the regulatory action

and the extent of the regulation’s interference with property rights to determine if the

regulatory action constitutes a taking.” Alto Eldorado 

P’ship, 634 F.3d at 1174

.

                                     B. Application

       We first conclude the district court correctly determined feral cats cannot be the

instrumentality of a government physical occupation for purposes of a paradigmatic

taking. Because this means Ms. Britton can succeed only if she has properly alleged a

regulatory taking, we then focus on Ms. Britton’s argument regarding the district court’s

Penn Central analysis. Ms. Britton argues the district court erred in performing a Penn

Central analysis on a motion to dismiss. In her view, because the Penn Central analysis

is fact specific, a district court must wait for the factual development that occurs in

discovery before undertaking it. Ms. Britton is incorrect.

   Paradigmatic Taking

       A government invasion of property constitutes a paradigmatic taking. 

Lingle, 544 U.S. at 537

. But our precedent bars Ms. Britton from asserting that the cats themselves

constitute a physical government invasion on her property. See Mountain States Legal

Found. v. Hodel, 

799 F.2d 1423

, 1428 (10th Cir. 1986) (en banc) (rejecting the

“argument that . . . wild horses are, in effect, instrumentalities of the federal government

                                              6
whose presence constitutes a . . . governmental occupation of the Association’s

property”). While the cats may have entered Ms. Britton’s property, the government did

not; nor did the government direct the cats to do so. Therefore, we read Ms. Britton’s

complaint as advancing some species of regulatory taking claim.

       The cases Ms. Britton cites on this point do not help her. She asks us to liken her

claim to that in Fallini v. United States, 

56 F.3d 1378

(Fed. Cir. 1995), but that case

explicitly relies on our holding in Mountain States that wild horses are not

instrumentalities of the United States government.

Id. at 1383

(holding that the plaintiffs’

claim was time-barred because it must have accrued from governmental action—the

passing of the legislation at issue—not the actions of the horses, who were “not agents of

the Department of the Interior”). Colvin Cattle Co. v. United States, 

468 F.3d 803

(Fed.

Cir. 2006), the other case Ms. Britton raises, is equally unhelpful. There, the plaintiff—a

private rancher—sued the United States, claiming the Bureau of Land Management’s

(BLM) grant of grazing rights to another rancher and its failure to remove wild horses

from a parcel of public land constituted a taking of the plaintiff’s stockwatering rights on

that land.

Id. at 808–09.

In particular, the plaintiff claimed the BLM had failed to prevent

the other rancher’s domesticated cattle as well as wild horses from infringing on his water

rights.

Id. With respect to

the cattle, the Federal Circuit rejected the claim both because

the United States could not be held responsible for a private rancher’s incursion on the

plaintiff’s water rights and because the BLM had required that rancher to provide his own

water.

Id. at 809.

As for the wild horses, the court held they were “outside the

government’s control” so “they cannot constitute an instrumentality of the government

                                              7
capable of giving rise to a taking.”

Id. (citing another Federal

Circuit case which cited

Mountain States). The feral cats here are likewise beyond the City’s control and Colvin

provides no support for Ms. Britton’s claim.3

       To be sure, the City has certain responsibilities related to the feral cats at issue in

this case. See N.M. Stat. Ann. § 77-1-12 (2009). But Mountain States teaches this sort of

regulatory authority over certain species does not make those animals instrumentalities of

the 

government. 799 F.2d at 1428

. There, the claim was that the Secretary of the Interior

was required to remove wild horses from private lands on request but had failed to do so.

Id. at 1424–25.

We never addressed whether the Secretary was, in fact, acting unlawfully

in failing to remove the wild horses. We simply determined there had been no taking.

Id. at 1431.

We similarly take no position as to whether the City is fulfilling its role under

New Mexico law through the TNR program. That issue is not before us; the question is

whether the City has violated the United States Constitution’s Takings Clause, not the

laws of New Mexico. We hold that it has not.




       3
         We note that Ms. Britton has waived any argument that cats can be distinguished
from the horses at issue in Mountain States, because cats are traditionally domestic
animals while the horses were specifically defined by statute as wild. Ms. Britton’s
opening brief does not use the words “domestic” or “domesticated,” nor does it use the
term “wild animal” or otherwise suggest the cats are not wild animals. And she does not
ask us to distinguish Mountain States on this ground. Although Ms. Britton does raise the
domestic/wild distinction in reply, that is too late. The argument is waived. See United
States v. Leffler, 

942 F.3d 1192

, 1197 (10th Cir. 2019) (“In this Circuit, we generally do
not consider arguments made for the first time on appeal in an appellant’s reply brief and
deem those arguments waived.”).

                                               8
       In doing so, we have no reason to—and therefore do not—pass on Ms. Britton’s

state law claims for trespass and nuisance. Those claims were premised on supplemental

jurisdiction and the district court properly declined to exercise jurisdiction over them (and

dismissed them without prejudice) when it determined the federal takings claim could not

succeed. See Koch v. City of Del City, 

660 F.3d 1228

, 1248 (10th Cir. 2011) (“When all

federal claims have been dismissed, the court may, and usually should, decline to

exercise jurisdiction over any remaining state claims.” (quotation marks omitted)). If the

TNR program is unlawful under New Mexico law, as Ms. Britton suggests, she may press

her claims in a court of competent jurisdiction. We hold only that any remedy she may

have for the City’s alleged violations of N.M. Stat. Ann. § 77-1-12 is not found in the

Takings Clause of the United States Constitution.

   Regulatory Taking

       At oral argument, Ms. Britton suggested she might be advancing a per se

regulatory taking theory. A per se regulatory taking, however, requires Ms. Britton to

show either “a permanent physical invasion of her property” or that the regulation

deprives her of “all economically beneficial use of her property.”

Id. at 538

(internal

quotation marks omitted, first emphasis added). Ms. Britton has not alleged the cats

permanently occupied her property. Nor has she alleged they deprived it of all

economically beneficial use. See App. at 7–8 (alleging Ms. Britton’s “property will now

appraise for less tha[n] she purchased the property for” but not that it is valueless); Oral

Argument at 1:44–1:54 (agreeing Ms. Britton was not arguing her property was deprived



                                              9
of economically beneficial use). She therefore cannot succeed on a per se regulatory

taking theory.

       “[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Ashcroft v. Iqbal, 

556 U.S. 662

, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 

550 U.S. 544

, 555 (2007)). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Llacua v. W. Range Ass’n, 

930 F.3d 1161

, 1177 (10th Cir. 2019)

(quoting 

Iqbal, 556 U.S. at 678

). Plausibility requires the plaintiff to plead “factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 

757 F.3d 1125

, 1136 (10th Cir. 2014) (quoting 

Iqbal, 556 U.S. at 678

). “This requirement of

plausibility serves not only to weed out claims that do not (in the absence of additional

allegations) have a reasonable prospect of success, but also to inform the defendants of

the actual grounds of the claim against them.” Robbins v. Oklahoma, 

519 F.3d 1242

,

1248 (10th Cir. 2008). “The question is whether, if the allegations are true, it is plausible

and not merely possible that the plaintiff may obtain relief.” 

Llacua, 930 F.3d at 1177

.

       Thus, under the Twombly and Iqbal pleading standard, Ms. Britton needed to plead

facts sufficient to plausibly suggest she could show a non-per se regulatory taking under

Penn Central. Further factual development is unnecessary because the allegations in the

amended complaint are taken to be true. If the factual content in the amended complaint

does not allow at least a plausible inference that a regulatory taking occurred under Penn

                                               10
Central, dismissal is appropriate. See Taylor v. United States, 

959 F.3d 1081

, 1087 (Fed.

Cir. 2020) (concluding, in reviewing a motion to dismiss a takings claim, “that the

[plaintiffs’] regulatory-taking claim cannot pass muster under [the Penn Central]

standards, even without further factual inquiry”).4 Simply put, the district court did not

err in assessing whether Ms. Britton’s factual allegations were sufficient to state a

regulatory taking claim under the governing legal standard.

       Usually, we would proceed to consider the district court’s analysis of

Ms. Britton’s amended complaint to determine whether the dismissal was, in fact,

appropriate. That is unnecessary here, however, because Ms. Britton has forfeited the

argument that her amended complaint could survive if the district court correctly

performed the Penn Central analysis at the motion to dismiss phase. To the extent

Ms. Britton gestures on appeal toward an argument that the district court’s Penn Central

analysis was wrong rather than merely premature, she does so insufficiently to preserve

the issue for our review. See Bronson v. Swensen, 

500 F.3d 1099

, 1104 (10th Cir. 2007)

(“[W]e routinely have declined to consider arguments that are not raised, or are



       4
         The other circuit courts to have encountered this question, albeit in unpublished
decisions, are all in agreement that the Penn Central analysis can be conducted at the
pleading stage. See Sierra Nevada SW Enters., Ltd. v. Douglas County, 506 F. App’x
663, 666–67 (9th Cir. 2013) (unpublished) (applying the Iqbal pleading standard to a
takings claim and finding it wanting under Penn Central); Yur-Mar, L.L.C. v. Jefferson
Par. Council, 451 F. App’x 397, 400–01 (5th Cir. 2011) (unpublished) (same); see also
Acorn Land, LLC v. Baltimore Cnty., 402 F. App’x 809, 816–17 (4th Cir. 2010)
(unpublished) (determining the plaintiff had met the Iqbal pleading standard when
considering the Penn Central factors). We are unaware of any circuit court to have held
to the contrary, and Ms. Britton does not direct our attention to any such decision.

                                             11
inadequately presented, in an appellant’s opening brief.”). Ms. Britton’s opening brief

contains only one paragraph arguably on this point, consisting of three sentences. She

argues her amended complaint alleged an unreasonable “interfere[nce] with her property

interests” through the creation of the feral cat colony; that “the damage and blighting of

her property” was in line with opening flood gates to release water; and that the district

court’s decision was therefore wrong. Appellant Br. at 12. At no point does she recite or

attempt to apply the Penn Central factors.

       And Ms. Britton’s only citation on this point, Arkansas Game & Fish Commission

v. United States, 

568 U.S. 23

(2012), does not help her. There the Supreme Court

considered a “temporary physical invasion by government.”

Id. at 38.

The Court

concluded that temporary flooding could be a taking, but did not conclude such flooding

necessarily constituted a taking.

Id. at 34, 38.

Rather, it remanded for consideration of a

multifactor balancing test applicable to temporary physical invasions, including many of

the Penn Central factors.

Id. at 38–41.

Thus, that case establishes only that a balancing

analysis must be performed even though the invasion is temporary. The district court here

did perform a Penn Central analysis, so Arkansas Game & Fish Commission is

inapposite. Ms. Britton has not properly presented for our review any argument that the

district court’s application of the Penn Central analysis is erroneous.

       Ms. Britton next contends that the facts alleged are not themselves “fantastic,”

Reply Br. at 5 & n.1 (“Appellant was not making allegations akin to a visit from little

green men from Mars or adventures in time travel” (citing 

Iqbal, 556 U.S. at 696

(Souter,

J., dissenting)), and that the Penn Central standard is fact-intensive. True enough, but

                                             12
these points do not show the district court erred in evaluating whether Ms. Britton’s

amended complaint, taken as true, plausibly showed a regulatory taking.5 Accordingly,

her appeal cannot succeed.

                                III.   CONCLUSION

       We AFFIRM.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




       5
          “When a defendant raises the qualified-immunity defense, the plaintiff must . . .
establish (1) the defendant violated a federal statutory or constitutional right and (2) the
right was clearly established at the time of the defendant’s conduct.” Ullery v. Bradley,

949 F.3d 1282

, 1289 (10th Cir. 2020). Because Ms. Britton has not demonstrated the
district court erred in concluding the TNR program did not implicate the Takings Clause,
the individual defendants are also entitled to qualified immunity under the first prong of
that analysis.

                                             13

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