Broughton Lumber Co. v. Columbia River Gorge Com'n
| Decision Date | 02 December 1992 |
| Docket Number | No. 91-35183,91-35183 |
| Citation | 975 F.2d 616 |
| Parties | 23 Envtl. L. Rep. 20,123 BROUGHTON LUMBER COMPANY, Plaintiff-Appellant, v. COLUMBIA RIVER GORGE COMMISSION et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael E. Haglund and Kathleen A. Pool, Haglund & Kirtley, Portland, Or., for plaintiff-appellant.
Lawrence Watters, Counsel, White Salmon, Wash., for defendant-appellee Columbia River Gorge Com'n.
James M. Johnson, Sr. Asst. Atty. Gen., Olympia, Wash., for defendant-appellee State of Wash.
Michael D. Reynolds, Asst. Sol. Gen., Salem, Or., for defendant-appellee State of Or.
Appeal from the United States District Court for the District of Oregon.
Before WALLACE, Chief Judge, and GOODWIN, Circuit Judge, and CROCKER, District Judge. *
Broughton Lumber Company (Broughton), appeals the district court's order dismissing its inverse condemnation action against the states of Oregon and Washington (the States) and its declaratory judgment and inverse condemnation actions against the Columbia River Gorge Commission (Commission) brought pursuant to 16 U.S.C. §§ 544-544p (1989). We affirm.
Broughton, a Washington Corporation, owns a 108.53 acre lot within the Columbia River Gorge National Scenic Area. In August, 1988, Broughton submitted a land use application to the Commission to subdivide its 108.53 acre lot into three parcels for residential development. The Executive Director (Director) of the Commission denied Broughton's application on October 25, 1988.
Broughton appealed the Director's decision to the Commission. On January 24, 1989, the Commission adopted the Director's findings of fact and conclusions of law, upheld the Director's decision, and denied Broughton's appeal.
Broughton filed a civil complaint in the United States District Court for the District of Oregon against the Commission, the states of Oregon and Washington, the United States, and the Secretary of the United States Department of Agriculture (Secretary). 1
The district court dismissed Broughton's inverse condemnation action against the states of Oregon and Washington for lack of jurisdiction. Broughton appeals this decision, arguing that the Eleventh Amendment does not bar its cause of action because Congress has abrogated Oregon's and Washington's sovereign immunity and the Commission's waiver of immunity can be imputed to Oregon and Washington.
Next, the district court dismissed Broughton's declaratory judgment action against the Commission for lack of subject matter jurisdiction. The district court found that the Columbia River Gorge National Scenic Area Act (Gorge Act), 16 U.S.C. §§ 544-544p, did not confer jurisdiction upon the federal courts for actions involving the Commission. Broughton appeals this decision arguing that the federal courts have subject matter jurisdiction pursuant to the Gorge Act and 28 U.S.C. § 1331.
Finally, the district court dismissed Broughton's inverse condemnation claim against the Commission because it was unripe for judicial review. Broughton appeals this decision arguing that the States' waiver of sovereign immunity obviates the need for the ripeness requirement to be met, and the States' compensatory procedures for unconstitutional takings without just compensation are inadequate.
This court reviews the existence of subject matter jurisdiction in the district court de novo. Allah v. Superior Court of California, 871 F.2d 887, 890 (9th Cir.1989) (citing Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986)).
Broughton appeals the district court's dismissal of its inverse condemnation action against the states of Oregon and Washington. Broughton contends that its inverse condemnation action against the States is proper in federal court because Congress, by the terms of the Gorge Act, has abrogated the States' immunity. Additionally, Broughton argues that the Commission has waived its Eleventh Amendment immunity and that the Commission's waiver of immunity may be imputed to the States.
The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Eleventh Amendment has been construed to extend to suits brought against a state by its own citizens as well as by citizens of other states. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). As a result, federal courts are prohibited from hearing suits brought against unconsenting states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984).
The Eleventh Amendment bar to suits against states in federal court is not absolute. First, Congress may abrogate the States' constitutionally secured immunity by expressing, in unmistakably clear language, its intention to allow the states to be sued in federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242-43, 105 S.Ct. 3142, 3147-48, 87 L.Ed.2d 171 (1985). Second, a state may waive its Eleventh Amendment immunity and consent to be sued in federal court. Id. at 241, 105 S.Ct. at 3146; Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883). "[A] State will be deemed to have waived its immunity 'only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.' " Atascadero, 473 U.S. at 239-40, 105 S.Ct. at 3146 (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) (internal quotation omitted)). "Although a State's general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment." Atascadero, 473 U.S. at 241, 105 S.Ct. at 3146.
Broughton relies on Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), to support its contention that Congress has abrogated the States' immunity. Petty, however, is distinguishable from the present case.
In Petty, Tennessee and Missouri created an agency by entering into a bi-state compact. The compact provided that the respondent agency should have the power to build a bridge and operate ferries across the Mississippi River at specified points and that it should have the power "to contract, to sue and be sued in its own name." Id. at 277, 79 S.Ct. at 788. Congress granted approval of the compact, explicitly stating:
That nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters, or any commerce between the States or with foreign countries, or any bridge, railroad, highway, pier, wharf, or other facility or improvement, or any other person, matter, or thing, forming the subject matter of the aforesaid compact or agreement or otherwise affected by the terms thereof.
Id. at 277-78, 79 S.Ct. at 788 (emphasis by Court). Congress could have adopted, as federal law, the law of either or both of the States. Id. at 280, 79 S.Ct. at 789. Instead, Congress approved the sue-and-be-sued clause in the compact under conditions that clearly provided that the States accepting it waived any immunity from suit. Id.
In contrast, Congress' approval of the Columbia River Gorge Compact (Compact) merely stated "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled." Act of Nov. 17, 1986, Pub.L. No. 99-663, 100 Stat. 4274 (1986). Thus, Congress did not clearly provide that the states joining the Compact waived their sovereign immunity. Nor does this terse enactment provision constitute an "unmistakably clear" statement of Congress' intent to abrogate Oregon's and Washington's immunity to suit in federal court. See Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147.
Next, Broughton argues that the Gorge Act and the Compact are replete with references to the Commission's waiver of sovereign immunity. Broughton further argues that the Commission's waiver of sovereign immunity can be imputed to the States. Although the Compact contains a provision empowering the Commission to "sue and be sued", 2 the Commission has not explicitly waived its sovereign immunity to suits in federal court. Pursuant to 16 U.S.C. § 544m(b)(6), actions involving the Commission shall be brought in the state courts of Oregon and Washington. The Commission's waiver of sovereign immunity in the state courts does not act as a waiver of Eleventh Amendment immunity in the federal courts. 3 See Atascadero, 473 U.S. at 241, 105 S.Ct. at 3146.
Because Broughton has failed to demonstrate that Congress has abrogated the States' immunity or that the States have waived their sovereign immunity, Broughton's inverse condemnation action is barred by the Eleventh Amendment and the district court properly dismissed this action.
Broughton appeals the district court's dismissal of its declaratory judgment action against the Commission. Broughton argues that the federal courts have subject matter jurisdiction over its declaratory judgment action pursuant to 16 U.S.C. § 544m(b)(4)-(6).
Although paragraphs 4, 5, and 6 when read individually are ambiguous, when read collectively they clearly confer mandatory jurisdiction upon the state courts for actions involving the Commission.
Section 544m(b)(4) of 16 U.S.C. provides:
(4) Judicial review
Any person or entity adversely affected by--
(A) any final action or order of a county, the Commission, or the Secretary...
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