Union Elec. Co. v. Missouri Dept.

• Decision Date: 09 April 2004
• Docket Number: No. 03-2135.,03-2135.
• Citation: 366 F.3d 655
• Parties: UNION ELECTRIC COMPANY, doing business as Ameren UE, Plaintiff — Appellant, v. MISSOURI DEPARTMENT OF CONSERVATION; John D. Hoskins, in his official capacity as Director of the Missouri Department of Conservation; Stephen C. Bradford, in his official capacity as Commissioner of the Conservation Commission; Anita B. Gorman, in her official capacity as Commissioner of the Conservation Commission; Cynthia Metcalfe, in her official capacity as Commissioner of the Conservation Commission; Howard L. Wood, in his official capacity as Commissioner of Conservation Commission, Defendants — Appellees. State of Missouri; Missouri Clean Water Commission, Amici on Behalf of Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

366 F.3d 655

UNION ELECTRIC COMPANY, doing business as Ameren UE, Plaintiff — Appellant, v. MISSOURI DEPARTMENT OF CONSERVATION; John D. Hoskins, in his official capacity as Director of the Missouri Department of Conservation; Stephen C. Bradford, in his official capacity as Commissioner of the Conservation Commission; Anita B. Gorman, in her official capacity as Commissioner of the Conservation Commission; Cynthia Metcalfe, in her official capacity as Commissioner of the Conservation Commission; Howard L. Wood, in his official capacity as Commissioner of Conservation Commission, Defendants — Appellees State of Missouri; Missouri Clean Water Commission, Amici on Behalf of Appellees.

No. 03-2135.

United States Court of Appeals, Eighth Circuit.

Submitted: December 17, 2003.

Filed: April 9, 2004.

Amended: April 30, 2004.

Ann E. Buckley, argued, Armstrong & Teasdale, St. Louis, MO (John R. Molm, Charles A. Zdebski, Jennifer A. Kerkhoff, Troutman & Sanders, Washington, DC, on the brief), for Plaintiff-Appellant.

Phillip B. Grubaugh, argued, Kansas City, MO (Spencer J. Brown, Mimi E. Doherty, Deacy & Deacy, Kansas City, MO, on the brief), for Defendants-Appellees.

Shannon L. Haney, Attorney General's Office, Jefferson City, MO, for Amici on Behalf of Appellees.

Before MELLOY, MCMILLIAN, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

This is a suit by AmerenUE, an electric utility, against the Missouri Department of Conservation ("MDOC") and, in their official capacities, the director of MDOC and four commissioners of the Missouri Conservation Commission. We affirm the District Court's¹ dismissal of the action as barred by the Eleventh Amendment.

AmerenUE, which is licensed and regulated by the Federal Energy Regulatory Commission, operates Bagnell Dam, a hydroelectric power plant on the Osage River. It was the damming of the Osage River by Bagnell Dam that created the Lake of the Ozarks. In the Spring of 2002, a significant fish kill occurred below the dam. The parties agree that the fish kill occurred soon after the Army Corps of Engineers released a substantial amount of water from the Harry S. Truman Dam, which is upstream from Bagnell Dam. MDOC, believing the fish kill was preventable and was caused by AmerenUE's negligence in failing to prevent it, demanded that AmerenUE provide compensation for the alleged $3.256 million worth of fish that were destroyed. When MDOC and AmerenUE were unable to agree on compensation for the lost fish, AmerenUE filed this suit in the District Court seeking a declaratory judgment and an injunction. Specifically, AmerenUE sought a declaration that the Federal Power Act, 16 U.S.C. §§ 791a-828c (2000), preempts MDOC from imposing liability on AmerenUE for the dead fish and sought an injunction to prevent MDOC from bringing any state-court or administrative actions to impose liability on the company for the lost fish. After AmerenUE filed its federal action, MDOC filed suit against AmerenUE in state court seeking precisely that relief, namely, damages for the loss of the fish. Later, the Missouri Attorney General filed an application to intervene in the federal case and requested that the case be dismissed on a number of grounds, including the State's Eleventh Amendment immunity. Thereafter, without ruling on the merits of the Attorney General's application to intervene, the District Court granted judgment to all of the defendants on Eleventh Amendment grounds, dismissed the case, and denied the application to intervene as moot. AmerenUE appeals the dismissal of its suit. We review a district court's dismissal of an action on Eleventh Amendment grounds de novo. Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir.1993) (per curiam), cert. denied, 513 U.S. 829, 115 S.Ct. 100, 130 L.Ed.2d 49 (1994).

AmerenUE urges that under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that Eleventh Amendment does not bar suits for prospective injunctive relief against state officials in their official capacity), its action against the individual defendants in their official capacity is not barred by the Eleventh Amendment. The company also argues that the defendants waived any Eleventh Amendment immunity the State enjoyed by entering a general appearance in response to the lawsuit and, alternatively, that the Attorney General waived the State's immunity by moving to intervene in the action. We consider AmerenUE's claims seriatim.

Our inquiry into whether the Ex Parte Young fiction avoids the Eleventh Amendment's bar to suits against the States does not include an inquiry into the merits of the claim. Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). We may, however, inquire into whether an applicable federal statutory scheme evidences an implicit or explicit intent to exclude Ex Parte Young actions, id. at 647, 122 S.Ct. 1753, and we may also question whether the suit and the remedy it seeks "implicate[] special sovereignty interests" such that an Ex Parte Young action will not lie. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997).

Here, we conclude that the Federal Power Act ("the Act") unmistakably evidences an intent to exclude licensees such as AmerenUE from maintaining an Ex Parte Young action seeking to prevent a State from recovering damages to its property resulting from the licensee's negligence in the operation of the licensed power project. Cf. Seminole Tribe, 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (holding that existence of a detailed remedial scheme shows Congressional intent to prohibit recourse to the Ex Parte Young fiction). In relevant part, the Act provides:

Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license and in no event shall the United States be liable therefor.

16 U.S.C. § 803(c) (2000). We have no occasion to consider whether this provision — in combination with the rest of the statutory scheme — demonstrates Congressional intent to exclude all Ex Parte Young actions under the Act. In the circumstances of this case, it is clear that the Act bars AmerenUE's federal-court action. Section 803(c) of the Act deals with licensee liability and is part of the Act's remedial scheme, which relies on damage actions, by parties whose property is injured by a licensee's operation of a licensed power project, to provide a remedy to those whose property is so injured. The Act does not draw any distinction between damage actions instituted by States and those instituted by private parties. The remedy that AmerenUE seeks, which would enjoin the State from bringing or maintaining an action to recover damages to its property allegedly caused by AmerenUE's negligent operation of Bagnell Dam, is plainly inconsistent with the Act.² Accordingly, the District Court's dismissal of the case on Eleventh Amendment grounds was correct inasmuch as the Act itself forecloses application of the Ex Parte Young exception to the State's assertion of Eleventh Amendment immunity. Because the Ex Parte Young exception thus cannot successfully be invoked in this case, and AmerenUE therefore cannot overcome the Eleventh Amendment bar to such an action against these State defendants, there is no need for us to inquire whether this action implicates any "special sovereignty interests" as in Coeur d'Alene, 521 U.S. at 281, 117 S.Ct. 2028.

AmerenUE urges that even if the Eleventh Amendment was initially available to the defendants as a bar from suit, it was waived either by MDOC or by the Attorney General. Specifically, AmerenUE contends that MDOC waived the State's sovereign immunity when it made a general appearance and defended the suit on the merits (MDOC did not raise its assertion of Eleventh Amendment immunity until its motion-to-dismiss reply brief). Alternatively, AmerenUE argues that the State's Eleventh Amendment immunity was waived when the Attorney General filed an application to intervene and to dismiss the action.

In support of its waiver claims, AmerenUE submits that our decision in Hankins v. Finnel, 964 F.2d 853 (8th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992), stands for the proposition that whenever a State defendant makes a general appearance in federal court and defends an action on the merits, it waives its Eleventh Amendment immunity. We do not believe that Hankins can bear the weight AmerenUE places on it. In Hankins, the State of Missouri defended a § 1983 suit brought in federal court by a prisoner who sought damages from a state employee. Id. at 854-55. At trial, the employee suffered an adverse judgment and was ordered to pay damages. The State agreed to indemnify its employee pursuant to the "State Legal Expense Fund," see Mo.Rev.Stat. § 105.711 (2000). Before it satisfied the judgment, the State sought to recoup the judgment amount by instituting proceedings in state court under the Missouri Incarceration Reimbursement Act, see id. §§ 217.825-841, which permits the Attorney General to institute a suit seeking reimbursement for up to ninety percent of the costs of a prisoner's confinement. Hankins, 964 F.2d at 854-55. After the state court appointed a receiver to hold the funds, the inmate's account was debited for the amount of the judgment plus interest and — that same day — the same amount was paid into the inmate's account in satisfaction of the judgment. Id. Thereafter, the inmate returned to federal court where he sought a writ of mandamus to stay the state court proceedings and a writ "to proceed in aid of execution on the judgment," whereupon the State asserted its Eleventh Amendment immunity from suit. Id. at 855. The District Court held that the State had waived its Eleventh Amendment immunity and...