Check this out, a new cert petition filed yesterday.

As the title of this post notes, this is one of ours. So we won’t be making substantial commentary on it.

But we can say that a sharply-divided Arkansas Supreme Court held that BAS’s Tyler takings claim for the State Lands Commissioner’s failure to return to BAS the equity-over-tax-debt-owed. The majority concluded that the Commissioner enjoyed sovereign immunity (even in Arkansas courts, and even from federal constitutional takings claims). Case dismissed.

Arkansas takes an unusual approach to sovereign immunity. A glance at the state constitution reveals a pretty categorical rule: “The State of Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. 5, § 20. Since adoption, the Arkansas Supreme Court has recognized limited exceptions to this blanket prohibition. First, if the plaintiff seeks only equitable relief (akin to the Ex parte Young exception to the 11th Amendment). And second, the state is not entitled to sovereign immunity when it is acting illegally, unconstitutionally, or ultra vires. Hold on a second, you say — doesn’t that wrap up the merits of a claim with the question of immunity? In other words, a claimant must prove the claim in order to defeat an assertion of sovereign immunity? Yes, that’s how we see it.

The trial court concluded there were genuine issue of material fact still in play about whether the Commissioner had acted illegally, so rejected the assertion of sovereign immunity. But the Arkansas Supreme Court saw it differently, concluding that the Tyler takings claim was simply a reframed challenge to the sufficiency of the forfeiture procedures (due process). The majority concluded that there’s no question that the notice and opportunity to be heard were sufficient, and held that the Commissioner was immune from both a due process and a takings claim.

One Justice dissented, noting that Arkansas must recognize an exception for federal takings and just compensation claims, first noting that “[t]his case exemplifies how messy this court’s sovereign immunity jurisprudence is.” Justice Womack stated that the original public meaning of the term “never” in article 5, section 20 of the Arkansas Constitution means that—”absent an express constitutional provision to the contrary”—that the State may never be sued in its own courts. But, he concluded, the Takings Clause is an “express constitutional provision to the contrary,” and requires a monetary remedy if there’s been a taking of private property for public use. If the Fifth Amendment alone is not sufficient, we should look to the Supremacy Clause as prohibiting a state from asserting immunity from federal constitutional claims.

Here is the Question Presented:

To collect an unpaid $9,897.88 property tax bill, the Arkansas Commissioner of State Lands foreclosed and auctioned an office building and land owned by BAS worth over $1,500,000. To avoid violating the Fifth Amendment for an unconstitutional taking, the Commissioner was obligated to return the equity to BAS. Tyler v. Hennepin County, 598 U.S. 631 (2023). When the Commissioner did not do so, BAS sued in an Arkansas court for a de facto taking. The Arkansas Supreme Court, however, categorically barred BAS’s federal takings claim because the Commissioner had not waived sovereign immunity under the Arkansas Constitution.

The question presented is:

Does a state’s Fifth and Fourteenth Amendment obligation to pay just compensation waive sovereign immunity when it takes private property?

Stay tuned for more.

Petition for a Writ of Certiorari, BAS, LLC v. Land, No. ___ (U.S. Feb. 2, 2026)