Another drive-by blog post today because we're still at the ABA Annual Meeting in Toronto, and between meetings of the State and Local Goverment Law Section and scooping up as many CLE credits as possible, haven't had much down time to detail the latest cases. But here's one that's worth reviewing on your own, if only because it was authored by Judge Jay Bybee, who is becoming quite the takings maven on the Ninth Circuit.
The Takings Clause, as the Supreme Court has reminded, is "self-executing," which means that the obligation to pay compensation for a taking is not completeley dependent on an enabling statute, nor is it subject to every claim of sovereign immunity.
That thought played central role in Jachetta v. United States, No. 10-35175 (Aug. 1, 2011), in which a three-judge panel of the Ninth Circuit held that a property owner's inverse condemnation claim against the United States and the Bureau of Land Management was barred by sovereign immunity, and that similar claims against the State of Alaska could not be heard in federal court because of the 11th Amendment. But because the Takings Clause is self-executing, Alaska state courts must at least consider the claim.
Here's the quick background: under the Alaska Native Allotment Act of 1906, the BLM was supposed to allot Jachetta two parcels in Alaska, but for some reason missed one. Eventually, Jachetta was successful in obtaining the second parcel, but only after it had been used as a "material" site (aka a gravel storage site) by the BLM, the Alaska DOT, and the Alaska pipeline service company. So Jachetta sued in federal court for inverse condemnation and other related claims. The district court dismissed.
The Ninth Circuit's opinion is full of detail and we won't go into the court's analysis of each part of Jachetta's complaint. But be sure to review the opinion for what we think is the most interesting part:
Jachetta argues that the Eleventh Amendment cannot bar an inverse condemnation action where, as here, the plaintiff lacks an alternative forum to pursue his constitutional claim. We have held that the Eleventh Amendment bars inverse condemnation actions brought against a state in federal court. However, we have also held that although the Eleventh Amendment bars such actions in federal court, "sovereign immunity may not stand in the way of recovery in state court" because of the "self-executing" character of the Takings Clause. "[S]tate courts must . . . be available to adjudicate claims brought under the federal Takings Clause . . . . [T]his constitutionally enforced remedy against the States in state courts can comfortably co-exist with the Eleventh Amendment immunity of the States from similar actions in federal court.". . . .We acknowledge the possibility that if Jachetta brings his inverse condemnation action in state court, that court may dismiss the action for lack of subject matter jurisdiction. Congress granted jurisdiction to certain states, including Alaska, "over civil causes of action between Indians or to which Indians are parties which arise in . . . Indian country." 28 U.S.C. § 1360(a).. . . .Nevertheless, we hold that Jachetta’s remedy lies in state court. Of the two possible fora in which Jachetta can bring his inverse condemnation claim, the federal forum is clearly unavailable to him. Accordingly, Jachetta must file his inverse condemnation action against Alaska in state court and afford that court an opportunity to address the interplay between 28 U.S.C. § 1360(b) and the constitutionally mandated remedy for Takings Clause violations. At that point, the state court can decide whether § 1360(b) deprives it of jurisdiction over Jachetta’s inverse condemnation claim and, if it does so, whether § 1360(b) is constitutional in light of the self-executing nature of the Takings Clause. If the state court nevertheless dismisses Jachetta’s action for lack of jurisdiction, Jachetta can then seek review in the United States Supreme Court.
Slip op. at 9839-41 (citiations omitted).
