Remember after Knick when we predicted that the Supreme Court's opening back up the federal courthouse doors wasn't the end of the procedural gamesmanship, but merely the opening of a new chapter? That it was time to dust off your old Federal Courts hornbook, because things like the Eleventh Amendment, Rooker/Feldman, abstention, and similar, were going to spring up as the way to avoid the merits of takings claims? That's we're going to be experiencing Williamson County, Phase 2?
Here's more proof (as if you needed it).
In EEE Minerals, LLC v. North Dakota, No. 22-2159 (Aug. 30, 2023), the U.S. Court of Appeals for the Eighth Circuit held that a takings claim against the State of North Dakota was barred from being litigated in federal court because the State can't be sued in federal court - even if the right to just compensation is self-executing.
This is a mineral rights fight, and the property owner claimed that when the North Dakota legislature (allegedly) shifted the historical high water mark on the Missouri River -- which presumptively gave the State mineral rights that the owner claimed belonged to it -- the State took property for public use.
In December 2020, EEE Minerals and Vohs sued North Dakota, the Lands Board, and the Commissioner of the Board in federal court. They claimed that the North Dakota statute was preempted by the Flood Control Act, and that the defendants had taken property from EEE Minerals and Vohs in violation of the Fifth Amendment. The plaintiffs sought damages, declarations that the North Dakota statute was preempted by federal law and that an unconstitutional taking had occurred, and an injunction prohibiting the defendants from claiming ownership of the mineral interests under state law.
Slip op. at 4. The district court dismissed.
The Eighth Circuit affirmed. We won't go into the question of whether the federal Flood Control Act preempted the North Dakota statute, but will leave it to those of you interested in that issue to digest pages 5-7. Short answer: no, it didn't.
The takings stuff begins on page 7 of the slip opinion. That claim fared no better:
Vohs next asserts that North Dakota, the Lands Board, and the Commissioner committed a taking of property without just compensation, in violation of the Fifth Amendment as incorporated against the States. She contends that when the State defined its mineral rights based on the historical ordinary high water mark, the State took mineral rights that were reserved to EEE Minerals and Vohs without providing compensation. We conclude that Vohs’s claims for damages and injunctive relief are barred by the Eleventh Amendment.
Slip op. at 7.
The court rejected the owner's argument that because the obligation to provide just compensation is self-executing, an owner whose property has been taken is entitled to seek that compensation in federal court. Go press your federal claim in state court, property owners:
The Supreme Court has not directly addressed the interplay between the Fifth Amendment and the Eleventh Amendment. But in Reich v. Collins, 513 U.S. 106 (1994), the Court addressed an analogous situation involving a self-executing right under the Due Process Clause. The Court explained that even though the Fourteenth Amendment provides a right to a remedy for taxes levied in violation of federal law, “the sovereign immunity States enjoy in federal court, under the Eleventh Amendment, does generally bar tax refund claims from being brought in that forum.” Id. at 109-10. Instead, state courts were required to entertain suits against a State to recover taxes unlawfully exacted.The same conclusion applies to a claim under the Takings Clause. There is no dispute that Vohs may bring her [federal] takings claim in North Dakota state court.
Slip op. at 8-9.
But what about prospective equitable relief (the Ex parte Young "exception" to the usual Eleventh Amendment rule)? The court wasn't having any of that because it concluded that the owner's claim for injunctive relief was just a claim for damages in disguise. "Vohs simply repackages her claim for monetary relief as a request for an injunction that cures past injuries and requires the payment of just compensation. This reformulated request for retrospective relief is likewise barred by the Eleventh Amendment." Slip op. at 9.
Stay tuned for more.
EEE Minerals, LLC v. North Dakota, No. 22-2159 (8th Cir. Aug 30, 2023)
