Anderson-Tully Co. v. McDaniel

Decision Date07 July 2009
Docket NumberNo. 08-3469.,08-3469.
Citation571 F.3d 760
PartiesANDERSON-TULLY COMPANY, Appellant, v. Dustin McDANIEL, Attorney General of the State of Arkansas, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph A. Strode, argued, Tanya B. Spavins, on the brief, Pine Bluff, AR, for appellant.

Ali Brady, AAG, argued, Carmine Joseph Cordi, Jr., on the brief, Little Rock, AR, for appellee.

Before BYE, HANSEN, and BENTON, Circuit Judges.

BYE, Circuit Judge.

Anderson-Tully Company (ATCO) appeals the district court's1 dismissal of its suit against the Arkansas Attorney General, Dustin McDaniel. In its suit, ATCO asserted ownership of two bodies of water within the state of Arkansas which McDaniel has asserted are public waters. ATCO sought to quiet title and enjoin McDaniel from attempting to claim the disputed waters for public use by application of the recreational use test of navigability. We affirm the district court's dismissal.


ATCO owns a large tract of land in Desha County, Arkansas, located next to the Mississippi River. Stimson Lake Land & Timber Co., LLC (Stimson Land), owns an adjoining tract of land. Included within the two entities' tracts of land is a lake called Stimson Lake, as well as a three-mile river chute called Stimson Chute. Stimson Chute connects the lake to the Mississippi River during times of high water, when the river backs into Stimson Lake through the chute.

When Arkansas first became a state, the area of land now occupied by the lake and chute were "fast land." "Fast land" refers to land that is above or landward of the existing high water mark, as opposed to "submerged land" which refers to land that is below the existing high water mark. Over the years, however, the Mississippi River migrated westward until the 1930s, then began migrating back eastward, and in the process created Stimson Lake.

ATCO leases its land to Stimson Land and Little Mozart Hunting Club. For many years, the Hunting Club had the quiet enjoyment of hunting, fishing, and other recreation on and around Stimson Lake and Stimson Chute. In January 2008, however, a duck hunter contacted the Arkansas Attorney General's office seeking confirmation of his right to hunt and fish below the ordinary high water mark of the lake and chute, indicating he was "being threatened with arrest if [he hunted]" there. App. at 239. Charles Moulton, an assistant attorney general, sent the hunter an email stating:

So if this lake/chute has a water connection to the [Mississippi] (even part of the year), has a history of public use, and where you hunt is below the ordinary high water mark, then I would say it's navigable and you have every right to be there.

Id. at 238.

Although the record is unclear, the hunter apparently took the Attorney General's office at its word and went hunting, because Stimson Land (but not ATCO) subsequently filed a civil trespass action in the Circuit Court of Desha County against "trespassers" duck hunting on Stimson Lake. McDaniel filed a motion to intervene in the suit asserting ownership of Stimson Lake and Stimson Chute pursuant to the recreational use doctrine of navigability adopted by the Arkansas Supreme Court in State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980).

Not being a party to the state court action filed by Stimson Land in state court, ATCO elected to bring its own action against McDaniel in federal district court. Stimson Land then nonsuited its state court action before the state court ruled on McDaniel's motion to intervene, leaving ATCO's federal suit as the only pending suit.

In its federal suit, ATCO alleged a deprivation of its federal constitutional rights under 42 U.S.C. § 1983 and sought a declaration that the Arkansas Supreme Court's adoption of the recreational use doctrine of navigability in McIlroy violated the federal constitution. The suit also sought to quiet title in Stimson Lake and Stimson Chute. In addition, ATCO sought "to enjoin the Attorney General from attempting to take private property for public use by application of the recreational use test of navigability." App. at 6. An amended complaint later filed by ATCO similarly sought injunctive relief. Id. at 19.

McDaniel moved to dismiss the federal suit on the basis of, among other things, sovereign immunity under the Eleventh Amendment. He relied primarily upon the Supreme Court's decision in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997), which held that a quiet title action —and claim for injunctive relief— brought by the Coeur d'Alene Tribe of Idaho against the State of Idaho and various of its state officials alleging ownership of the submerged lands and lake bed of Lake Coeur d'Alene was barred by the Eleventh Amendment.

The district court granted the motion to dismiss, but without directly addressing McDaniel's claim of sovereign immunity. Instead, the district court concluded:

This case is not ripe for decision. A suit under 42 U.S.C. § 1983 requires state action, and at this point, none has occurred. It seems to me that a state court must first determine who owns the land in question before any § 1983 claim would present itself. I cannot decide if Defendant has acquired this land unfairly and in violation of § 1983 if no determination has been made to rightful ownership. Plaintiff's suit is the "functional equivalent of a quiet title action" which raises an issue that "implicates special sovereignty interests." ... An Arkansas state court should determine who owns the property before there can be any analysis under § 1983.

Anderson-Tully Co. v. McDaniel, No. 5:08-CV-0134-WRW, 2008 WL 4372448, at *1 (E.D.Ark. Sept.23, 2008) (quoting Coeur d'Alene, 521 U.S. at 281, 117 S.Ct. 2028).

The district court also denied all pending motions, which included a motion by ATCO to amend its complaint, as moot. ATCO subsequently brought a motion for reconsideration under Rules 59 and 60 of the Federal Rules of Civil Procedure, which the district court summarily denied. ATCO then filed this timely appeal contending the case is ripe and is not barred by the Eleventh Amendment.


We review the district court's grant of a motion to dismiss de novo. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir.2009).

ATCO first asserts the district court erred in concluding this case is not ripe for adjudication. We agree. Both ATCO and McDaniel assert ownership of Stimson Lake and Stimson Chute, clearly putting title in dispute as between the two parties. While Article III would prohibit us from issuing an advisory opinion upon a "hypothetical" set of facts, KCCP Trust v. City of N. Kansas City, 432 F.3d 897, 899 (8th Cir.2005), Arkansas has done more than "hypothetically" assert ownership of Stimson Lake and Stimson Chute. This is not a case where ATCO's quiet title action "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Id. (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). Instead, ATCO's action rests upon events which have already occurred, i.e., the Attorney General has stated Stimson Lake and Stimson Chute are public waters. That is enough to give rise to a live controversy and to make this case ripe for adjudication. See, e.g., Employers Ass'n, Inc. v. United Steelworkers, 32 F.3d 1297, 1299 (8th Cir.1994) ("Ripeness is demonstrated by a showing that a live controversy exists such that the plaintiffs will sustain immediate injury from the operation of the challenged [action], and that the injury would be redressed by the relief requested.").2

Although we believe the district court was mistaken about the ripeness of this controversy, we must still affirm because we are convinced the district court reached the correct result. Helvering v. Gowran, 302 U.S. 238, 246, 58 S.Ct. 154, 82 L.Ed. 224 (1937). The suit against McDaniel in his official capacity as Arkansas's Attorney General is barred by the Eleventh Amendment. See Coeur d'Alene, 521 U.S. at 287-88, 117 S.Ct. 2028 (concluding states have sovereign immunity under the Eleventh Amendment from suits which are the functional equivalents of a quiet title action, including any claims for injunctive relief); see also W. Mohegan Tribe & Nation v. Orange County, 395 F.3d 18 (2d Cir.2004) (applying Coeur d'Alene and concluding quiet title action against the Governor of New York was barred by Eleventh Amendment immunity); Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281 (5th Cir.2000) (applying Coeur d'Alene and concluding federal lawsuit seeking to eject state officers from land they allegedly occupied in violation of federal law was barred by Eleventh Amendment immunity); MacDonald v. Vill. of Northport, Mich., 164 F.3d 964 (6th Cir. 1999) (applying Coeur d'Alene and concluding the Eleventh Amendment barred a federal lawsuit against the Michigan State Treasurer seeking a declaration that the plaintiffs owned a right-of-way which provided access to navigable waterway).

ATCO urges us to ignore its quiet title action and still address its request for injunctive relief under the exception to sovereign immunity established in Ex parte...

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