Petition for Writ of Certiorari — EEE Minerals, LLC, et al., Petitioners v. North Dakota, et al.

No. ________

In The

Supreme Court of the United States

____________________

EEE MINERALS, LLC, and SUZANNE VOHS, as

Trustee for the Vohs Family Revocable Living Trust,

Petitioners,

v.

STATE OF NORTH DAKOTA;

THE BOARD OF UNIVERSITY AND SCHOOL

OF LANDS OF THE STATE OF NORTH DAKOTA;

and JOSEPH A. HERINGER as Commissioner

for the Board of University and School of

Lands of the State of North Dakota,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

JOSHUA A. SWANSON

J. DAVID BREEMER

Vogel Law Firm

Counsel of Record

218 NP Avenue

DEBORAH J. LA FETRA

PO Box 1389

Pacific Legal Foundation

Fargo, ND 58107-1389

555 Capitol Mall, Suite 1290

Telephone: (701) 237-6983 Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

Counsel for Petitioners

i

QUESTION PRESENTED

Whether sovereign immunity bars a claim

asserting the constitutional right to just compensation

for a taking of property by a state?

ii

CORPORATE DISCLOSURE STATEMENT

Petitioner EEE Minerals, LLC, is a limited

liability company that has no parent corporation and

no stock.

STATEMENT OF RELATED PROCEEDINGS

EEE Minerals, LLC v. North Dakota, No. 22-2159,

81 F.4th 809 (8th Cir. Aug. 30, 2023).

EEE Minerals, LLC v. North Dakota, No. 1:20-cv219, 2022 WL 1814213 (D.N.D. May 31, 2022).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ....................................... v

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS AT ISSUE ........ 1

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION ....... 2

STATEMENT OF THE CASE .................................... 6

A. Facts ................................................................ 6

1. The Garrison Dam project ........................ 6

2. The State enacts legislation taking

the Vohses’ mineral interests ................... 8

B. Procedural History.......................................... 8

REASONS FOR GRANTING THE PETITION ....... 10

I.

THE DECISION BELOW RAISES AN

IMPORTANT ISSUE AS TO WHETHER

SOVEREIGN IMMUNITY PRECLUDES

A SUIT SEEKING JUST COMPENSATION

FOR A TAKING BY A STATE ........................ 11

A. Sovereign Immunity Is in Tension

with the Principle of Just

Compensation for a Taking .......................... 11

iv

B. The Decision Below Conflicts with

Common Law Understandings and

This Court’s Precedent ................................. 16

1. The decision below conflicts with

historical common law understandings

about the limited, conditional nature of

the sovereign power to take property ..... 16

2. The decision below conflicts with this

Court’s Just Compensation Clause

precedent ................................................. 21

II. THE EIGHTH CIRCUIT’S RELIANCE

ON THE DUE PROCESS ANALYSIS IN

REICH CONFLICTS WITH THIS

COURT’S PRECEDENT ................................. 25

CONCLUSION.......................................................... 29

Appendix

Opinion, U.S. Court of Appeals for the

Eighth Circuit, filed August 30, 2023..................1a

Order Granting Defendants’ Motion to Dismiss,

U.S. District Court for the District of

North Dakota, filed May 31, 2022.....................13a

Order denying petition for rehearing and

petition for rehearing en banc,

U.S. District Court for the District of

North Dakota, filed October 27, 2023................43a

Complaint (exhibits not included),

U.S. District Court for the District of

North Dakota, filed December 1, 2020..............44a

v

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ................................. 11–14, 28

Allen v. Cooper,

555 F. Supp. 3d 226 (E.D.N.C. 2021) .................. 22

Barron v. City of Baltimore,

32 U.S. (7 Pet.) 243 (1833) .................................. 13

Bay Point Props., Inc. v.

Mississippi Transp. Comm’n,

937 F.3d 454 (5th Cir. 2019) ................................. 5

Blatchford v. Native Village of

Noatak & Circle Village,

501 U.S. 775 (1991) ....................................... 11–12

Brown v. Legal Found. of Wash.,

538 U.S. 216 (2003) ............................................. 15

Cairo & Fulton R.R. Co. v. Turner,

31 Ark. 494 (1876) ......................................... 18, 20

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ......................................... 15

Chicago, Burlington & Quincy R.R. Co. v.

City of Chicago,

166 U.S. 226 (1897) ............................... 2, 4, 14, 21

Citadel Corp. v. Puerto Rico Highway Auth.,

695 F.2d 31 (1st Cir. 1982) .................................. 15

City of Monterey v. Del Monte Dunes

at Monterey, Ltd.,

526 U.S. 687 (1999) ............................................. 23

vi

Community Housing Improvement

Program v. City of New York,

492 F. Supp. 3d 33 (E.D.N.Y. 2020) .................. 2, 5

Davis v. Mills,

194 U.S. 451 (1904) ............................................. 16

Dolan v. City of Tigard,

512 U.S. 374 (1994) ............................................. 14

Edelman v. Jordan,

415 U.S. 651 (1974) ......................................... 2, 12

Fair Assessment in Real Estate

Ass’n, Inc. v. McNary,

454 U.S. 100 (1981) ............................................. 27

First English Evangelical Lutheran Church

of Glendale v. Los Angeles Cnty.,

482 U.S. 304 (1987) ......................13, 16, 21, 23, 26

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ............................................. 22

Ford Motor Co. v. Dep’t of Treasury of Ind.,

323 U.S. 459 (1945) ............................................. 25

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ......................................... 28

Gunter v. Atl. Coast Line R.R. Co.,

200 U.S. 273 (1906) ................................... 2, 12, 20

Hair v. United States,

350 F.3d 1253 (Fed. Cir. 2003) ............................ 24

Hans v. Louisiana,

134 U.S. 1 (1890) ................................................. 11

In The Case of the King’s Prerogative in

Salt-peter, 12 Coke R. 13 (1606).................... 16–17

vii

Jacobs v. United States,

290 U.S. 13 (1933) ............................................... 13

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ........2, 10, 13, 16, 21, 26–28

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) ............................... 15

Leistiko v. Sec’y of Army,

922 F. Supp. 66 (N.D. Ohio 1996) ....................... 24

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ............................................. 26

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ........................................... 23

Lucien v. Johnson,

61 F.3d 573 (7th Cir. 1995) ................................. 23

Malloy v. Hogan,

378 U.S. 1 (1964) ........................................... 28–29

Manning v. N.M. Energy, Minerals &

Natural Res. Dep’t,

144 P.3d 87 (N.M. 2006) .......................... 23–24, 28

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................. 21, 28–29

McKesson Corp. v. Div. of Alcoholic

Beverages & Tobacco,

496 U.S. 18 (1990) ......................................... 25–26

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ............................................. 14

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) .............................. 15

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 24

viii

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) ............................................. 14

PennEast Pipeline Co., LLC v. New Jersey,

141 S. Ct. 2244 (2021) ............................... 4, 12, 20

Reich v. Collins,

513 U.S. 106 (1994) ............................. 9, 25, 27–28

Rogers v. Bradshaw,

20 Johns. 735 (N.Y. 1823) ................................... 20

Seven Up Pete Venture v. Schweitzer,

523 F.3d 948 (9th Cir. 2008) ............................... 28

Sinnickson v. Johnson,

17 N.J.L. 129 (1839) ...................................... 18, 20

Stop the Beach Renourishment, Inc. v.

Fla. Dep’t of Env’t Prot.,

560 U.S. 702 (2010) ............................................. 14

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ....................................... 14, 23

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) ............................................. 26

United States v. Clarke,

445 U.S. 253 (1980) ............................................. 27

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) ............................... 2, 4, 18–20

United States v. Klamath & Moadoc Tribes,

304 U.S. 119 (1938) ............................................... 3

United States v. States of Louisiana, Texas,

Mississippi, Alabama & Florida,

363 U.S. 1 (1960) ................................................. 14

ix

Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18 (1940) ............................................... 19

Young v. McKenzie,

3 Ga. 31 (1847) ............................................. 3–4, 19

Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281 (4th Cir. 2021) .................................. 15

U.S. Constitution

U.S. Const. amend. V .................................................. 1

U.S. Const. amend. XI ................................................ 1

U.S. Const. amend. XIV .............................................. 2

U.S. Const. amend. XIV, § 1 ..................................... 14

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

28 U.S.C. § 1331 .......................................................... 1

28 U.S.C. § 1341 ........................................................ 27

Other Authorities

Amicus Brief of the Board of County

Commissioners of the County of La Plata,

Colorado, in Support of Respondents,

Palazzolo v. Rhode Island, No. 99-2047,

2001 WL 15620 (U.S. Jan. 3, 2001) .................... 24

Berger, Eric, The Collision of the

Takings and State Sovereign

Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ........... 5, 14, 22

1 Blackstone, William,

Commentaries on the Laws of England (1753) ... 17

x

Brief for the United States as Amicus Curiae

Supporting Appellee, First English Evangelical

Lutheran Church of Glendale v.

Los Angeles Cnty., No. 85-1199,

1986 WL 727420 (U.S. Nov. 4, 1986) .................. 23

Cooley, Thomas M.,

A Treatise on the Constitutional

Limitations (4th ed. 1878) ................................... 18

Grant, Eric,

A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) .............................. 24

Grotius, Hugo, De Jure Belli et Pacis

(On the Law of War and Peace) (1625) ............... 17

Jackson, Vicki C.,

The Supreme Court, the Eleventh

Amendment, and State Sovereign Immunity,

98 Yale L.J. 1 (1988) ............................................ 13

2 Kent, James,

Commentaries on American Law (1827),

available at https://lonang.com/wpcontent/download/KentCommentariesVol-2.pdf............................... 3–4, 18

Mills, Henry E. & Abbott, Augustus L., Mills on

the Law of Eminent Domain (2d ed. 1888) ......... 18

Nichols, Philip,

The Power of Eminent Domain (1909) .... 17, 19, 22

Seamon, Richard H.,

The Asymmetry of State Sovereign Immunity,

76 Wash. L. Rev. 1067 (2001).......................... 5, 14

xi

3 Story, Joseph, Commentaries on the

Constitution of the United States (1833)......... 4, 19

Struve, Catherine T.,

Turf Struggles: Land, Sovereignty,

and Sovereign Immunity,

37 New Eng. L. Rev. 571 (2003) .......................... 23

1 Tribe, Laurence H., American

Constitutional Law (3d ed. 2000) ........................ 23

1

PETITION FOR WRIT OF CERTIORARI

EEE Minerals, LLC, and Suzanne Vohs, as

Trustee for The Vohs Family Revocable Living Trust,

respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Eighth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

81 F.4th 809 (8th Cir. 2023) and reprinted at App. 1a.

The order of the district court granting North

Dakota’s motion to dismiss is reported at 2022 WL

1814213 (D.N.D. May 31, 2022) and reprinted at App.

13a.

JURISDICTION

The district court had jurisdiction over this case

under 28 U.S.C. § 1331 and the Fifth Amendment to

the United States Constitution. The Eighth Circuit

issued its decision on August 30, 2023, App. 1a, and

denied rehearing on October 27, 2023. App. 43a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment to the U.S. Constitution

provides, in relevant part, “nor shall private property

be taken for public use, without just compensation.”

The Eleventh Amendment to the U.S. Constitution

states: “The 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.”

2

The Fourteenth Amendment to the U.S.

Constitution states, in relevant part, “nor shall any

State deprive any person of life, liberty, or property,

without due process of law.”

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

This case presents an important and recurring

question as to whether sovereign immunity bars a

claim asserting that a state is liable for an

unconstitutional taking of property. States are

generally immune from suits for damages because of

their sovereign status, Edelman v. Jordan, 415 U.S.

651, 663 (1974), unless they consent to suit or waive

their immunity. Gunter v. Atl. Coast Line R.R. Co.,

200 U.S. 273, 284 (1906).

On the other hand, the states’ right to take

property is conditional upon payment of just

compensation. United States v. Great Falls Mfg. Co.,

112 U.S. 645, 656 (1884). The Fifth Amendment

reflects this principle by providing property owners

with a right to sue for just compensation when the

government takes property. Knick v. Township of

Scott, 139 S. Ct. 2162, 2171–72 (2019). The states are,

of course, bound by the Fifth Amendment’s Just

Compensation Clause through the Fourteenth

Amendment’s Due Process Clause. Chicago,

Burlington & Quincy R.R. Co. v. City of Chicago, 166

U.S. 226, 235–41 (1897).

There is accordingly “obvious tension” between the

principles of state sovereign immunity and the Just

Compensation

Clause.

Community

Housing

Improvement Program v. City of New York (CHIP),

492 F. Supp. 3d 33, 40 (E.D.N.Y. 2020). While

3

sovereign immunity bars claims against the state, the

“just compensation” requirement demands that states

bow to such claims when taking property. Young v.

McKenzie, 3 Ga. 31, 41–42 (1847) (observing that the

just compensation requirement for a taking does not

“do anything more than declare a great common law

principle, applicable to all governments, both state

and federal, which has existed from the time of Magna

Charta” (emphasis added)).

The decision below resolves this clash in favor of

sovereign immunity. But there are serious problems

with its conclusion. For one, the conclusion that

sovereign immunity prevents a property owner from

seeking just compensation for a taking by a state is

inconsistent with historical understandings about the

nature of the sovereign power to take property. Since

the beginning of the Republic, the sovereign’s right to

take property has been conditioned on an implicit

agreement to pay compensation when it takes

property. See United States v. Klamath & Moadoc

Tribes, 304 U.S. 119, 123 (1938) (“The established rule

is that the taking of property by the United States in

the exertion of its power of eminent domain implies a

promise to pay just compensation[.]”). As Chancellor

Kent explained,

A provision for compensation is a necessary

attendant on the due and constitutional

exercise of the power of the lawgiver to deprive

an individual of his property without his

consent; and this principle in American

constitutional jurisprudence, is founded in

4

natural equity, and is laid down by jurists, as

an acknowledged principle of universal law.

2 James Kent, Commentaries on American Law 144

(1827).1

The Fifth Amendment enshrined the preexisting

understanding that the sovereign power to take

property includes a promise to pay compensation.

Great Falls Mfg. Co., 112 U.S. at 661; Young, 3 Ga. at

43 (The Takings Clause “is an affirmance of a great

doctrine, established by the common law for the

protection of private property. It is founded in

natural equity, and is laid down by jurists as a

principle of universal law.” (quoting 3 Joseph Story,

Commentaries on the Constitution of the United States

661 (1833))). And adoption of the Fourteenth

Amendment confirmed that the states’ power to take

property, like that of the federal government, is

conditioned by a constitutional duty—and an implied

promise—to pay compensation. Chicago, Burlington

& Quincy R.R., 166 U.S. at 233–34. Given this legal

tradition, the very act of taking property waives a

state’s sovereign immunity from a claim for just

compensation. See PennEast Pipeline Co., LLC v. New

Jersey, 141 S. Ct. 2244, 2258 (2021) (The “‘plan of the

Convention’ includes certain waivers of sovereign

immunity to which all States implicitly consented at

the founding.”).

The Eighth Circuit’s decision to apply sovereign

immunity to bar a claim seeking just compensation for

a taking by a state is incompatible with these

founding-era understandings. It is also irreconcilable

Available at https://lonang.com/wp-content/download/KentCommentariesVol-2.pdf.

1

5

with this Court’s precedent on the “self-executing” just

compensation remedy. The effect is to encourage

states to engage in aggressive, uncompensated use of

the power to expropriate property. This case is an

example.

Here, North Dakota enacted a statute that

redefines privately held mineral rights as state

property. App. 4a–5a. Because the law includes no

mechanism for compensating affected property

owners, the owners sued, alleging they are entitled to

just compensation or, alternatively, to a declaration

that the state violated their constitutional rights. Yet,

the Eighth Circuit held that North Dakota is entirely

immune from these claims. App. 10a–11a.

This Court has not yet directly addressed the

question of whether the right to seek just

compensation for a taking overrides sovereign

immunity. Richard H. Seamon, The Asymmetry of

State Sovereign Immunity, 76 Wash. L. Rev. 1067,

1067–68 (2001); Eric Berger, The Collision of the

Takings and State Sovereign Immunity Doctrines, 63

Wash. & Lee L. Rev. 493, 496 (2006) (the Court has

“avoided the issue”); CHIP, 492 F. Supp. 3d at 40

(noting the Court has not “decisively resolved the

conflict”). It should do so now, by granting the Petition

and holding that states are not immune from

unconstitutional takings claims. Bay Point Props.,

Inc. v. Mississippi Transp. Comm’n, 937 F.3d 454, 456

n.1 (5th Cir. 2019) (acknowledging that “‘the tension’

between state sovereign immunity and the right to

just compensation . . . is [an issue] for the Supreme

Court”).

6

STATEMENT OF THE CASE

A. Facts

1. The Garrison Dam project

This dispute revolves around the taking of private

mineral interests in 276.8 acres of land used in

connection with the operation of the Garrison Dam in

North Dakota. App. 3a.

The Flood Control Act of 1944 authorized the

United States Army Corps of Engineers (“Corps”) to

construct the Garrison Dam on the Missouri River in

North Dakota. App. 2a. As part of the project, and in

anticipation of its creation of a reservoir that would

become known as Lake Sakakawea, the Corps

acquired the surface estate to Missouri River uplands

that would form the bed of the lake. App. 46a–47a,

¶ 12. However, the Corps generally left the mineral

estate in private ownership. App. 16a–17a.

When the Garrison project was conceived, the

Vohses’ and EEE Minerals’ predecessors owned 276.8

acres of property in McKenzie County, near the

Garrison project. App. 47a, ¶ 14. In 1957, five years

after completion of the dam, the United States

obtained the surface estate in the Vohses’ McKenzie

County land, anticipating that it would be submerged

with the creation of Lake Sakakawea. App. 3a.

However, the Vohses’ and EEE Minerals’ predecessor

in interest retained the oil, gas, and other mineral

interests in the 276.8 acres of land. Id.2 Based on their

2 The warranty deed executed when the United States acquired

the surface estate of the Vohses’ land specifically states:

[R]eserving, however, to the owner of the land or the

owner of any interest therein, including third party

7

reservation of mineral interests at the time of the

transfer of the surface estate, the Vohses have entered

into numerous, recorded oil and gas leases for the

property. App. 3a; App. 48a, ¶ 17.

The United States did not obtain any interest in

the Vohses’ property from the state of North Dakota

because the state did not own it. App. 47a. Nor did

North Dakota obtain an interest in the land at the

time of the transfer of the Vohses’ surface estate to the

United States. Id.

Fifty years after completion of the Garrison Dam

project, the state of North Dakota and the United

States became embroiled in a dispute over ownership

of the property along the portion of the Missouri River

underlying Lake Sakakawea. App. 17a–18a. The

lessees, their heirs, successors and assigns, all oil and gas

rights therein, on or under said described lands, with full

rights of ingress and egress for exploration, development,

production and removal of oil and gas; upon condition

that the oil and gas rights so reserved are subordinated

to the right of the United States to flood and submerge

the said lands permanently or intermittently in the

construction, operation and maintenance of the Garrison

Dam and Reservoir, and that any exploration or

development of such rights shall be subject to federal or

state laws with respect to pollution of waters of the

reservoir; provided further that the District Engineer,

Corps of Engineers, Garrison District, or his duly

authorized representative shall approve, in furtherance

of the exploration and/or development of such reserved

interests, the type of any structure and/or appurtenances

thereto now existing or to be erected or constructed in

connection with such exploration and/or development,

said structures and/or appurtenances thereto not to be of

a material determined to create floatable debris.

App. 23a.

8

dispute centered on the location of the ordinary high

water mark (OHWM), because this line marks the

upland boundary of state-owned land within the

riverway. Id.

2. The State enacts legislation taking the

Vohses’ mineral interests

In 2008, the North Dakota Lands Board

commissioned a “Phase 1” survey to determine the

current ordinary high water mark of the Missouri

River. App. 3a. In 2010, it carried out another survey

(“Phase 2”) to determine the historical OHWM as it

existed before the closing of the Garrison Dam.

App. 4a.

In 2017, as disputes over the extent of the state’s

property interests along the Missouri River grew,

North Dakota enacted a statute intended to address

the issue. App. 4a; App. 19a–20a. The law, known as

the “Ownership of Missouri River Act,” App. 48a,

¶¶ 15–18, adopted a historical OHWM survey used by

the Corps when it acquired land for Lake Sakakawea

as the boundary of the state’s property along the river.

App. 4a. The state subsequently interpreted and

applied the Act to grant it fee ownership of the land in

which the Vohses reserved mineral interests. App. 5a.

In short, pursuant to the Act, North Dakota

redefined the mineral interests reserved to the Vohses

by the 1957 deed as state property. App. 48a–49a,

¶¶ 18–20. The state has not provided compensation to

the Vohses or to other affected property owners

through the Act or otherwise. App. 51a, ¶ 26.

B. Procedural History

In 2020, the Vohs Trust and EEE Minerals

(collectively, the Vohses) sued a number of North

9

Dakota agencies and officials in federal court. In part,

their complaint asserted an unconstitutional takings

claim against the state pursuant to the Fifth and

Fourteenth Amendments. App. 50a–51a. The claim

sought just compensation, declaratory relief, an

injunction. App. 2a; App. 53a.

The state defendants moved to dismiss under

Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6),

arguing in part that sovereign immunity barred the

Vohses’ takings claims. App. 24a. The district court

agreed. It held that “the Eleventh Amendment bars

any recovery for damages against the state and its

employees acting in their official capacities, unless a

waiver applies. No waiver applies in this instance, and

sovereign immunity bars the recovery of damages.”

App. 36a–37a.

On appeal, an Eighth Circuit panel upheld the

lower court’s judgment that the Vohses’ claim for just

compensation is barred by sovereign immunity. App.

9a–10a. The panel’s analysis relies on a Due Process

Clause case, Reich v. Collins, 513 U.S. 106, 109–10

(1994), which holds 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.’” App.10a

(quoting Reich, 513 U.S. at 110).

The Court below also rejected the Vohses’

contention that “if monetary relief is unavailable, then

[they are] entitled to pursue equitable relief under Ex

parte Young, 209 U.S. 123 (1908).” App. 11a. The court

concluded that this simply repackages their claim “for

monetary relief as a request for an injunction that

10

cures past injuries and requires the payment of just

compensation.” It then held that such a “reformulated

request for retrospective relief is likewise barred by

the Eleventh Amendment.” Id. Therefore, while states

are bound by the Takings Clause through the

Fourteenth Amendment, and the constitutionally

mandated just compensation remedy for a taking is

actionable in federal court, Knick, 139 S. Ct. at 2168,

the court below held that North Dakota’s statute is not

accountable to the Takings Clause. App. 9a–11a.

The Vohses filed a petition for rehearing en banc.

In a short, published order, the Eighth Circuit denied

the petition. However, the order noted that “Judge

Grasz would grant the petition for rehearing en banc.”

App. 43a. The Vohses and EEE Minerals now petition

this Court for a writ of certiorari.

REASONS FOR GRANTING THE PETITION

The right to take private property against a

property owner’s will is one of the most significant

powers that a sovereign government wields. As a

result, in the Anglo-American tradition, that power

has always been limited by a responsibility, namely,

the duty to pay just compensation to those whose

property is taken. Immunity from suits to which the

government has not consented is also a core attribute

of sovereignty.

These two principles, sovereign immunity from

damages suits and the individual’s right to seek

compensation for a taking, function independently in

most cases. However, when a property owner seeks

compensation for a taking of property by a state, the

principles conflict.

11

In the decision below, the Eighth Circuit held that

North Dakota’s sovereign immunity is superior to the

Vohses’ right to seek compensation for a taking by the

state. This decision raises an important and recurring

issue of constitutional law, and conflicts with

historical understandings about the nature of the

sovereign power to take property and with this Court’s

jurisprudence.

I.

THE DECISION BELOW RAISES AN

IMPORTANT ISSUE AS TO WHETHER

SOVEREIGN IMMUNITY PRECLUDES A

SUIT SEEKING JUST COMPENSATION

FOR A TAKING BY A STATE

A. Sovereign Immunity Is in Tension with

the Principle of Just Compensation for a

Taking

The Eleventh Amendment affirms a principle of

state sovereignty inherent in the constitutional

structure: that states are sovereignly immune from

most non-consensual suits, Hans v. Louisiana, 134

U.S. 1, 21 (1890), whether a suit is filed in state or

federal court. Alden v. Maine, 527 U.S. 706, 712, 733,

749 (1999). In Blatchford v. Native Village of Noatak

and Circle Village, 501 U.S. 775 (1991), the Court

explained:

[W]e

have

understood

the

Eleventh

Amendment to stand not so much for what it

says, but for the presupposition of our

constitutional structure which it confirms: that

the States entered the federal system with their

sovereignty intact; that the judicial authority in

Article III is limited by this sovereignty; and

12

that a State will therefore not be subject to suit

in federal court unless it has consented to suit,

either expressly or in the “plan of the

convention.”

Id. at 779 (citations omitted).

It is particularly well-settled that sovereign

immunity principles shield states from nonconsensual suits for damages. Edelman, 415 U.S. at

666–67 (sovereign immunity does not allow a suit

seeking retroactive monetary relief). However, there

are exceptions.

For instance, state sovereign immunity does not

apply when states “have consented” to suit “pursuant

to the plan of the [Constitutional] Convention or to

subsequent constitutional Amendments.” Alden, 527

U.S. at 755. Pursuant to Section 5 of the Fourteenth

Amendment, Congress can override the state’s

sovereign immunity when acting to enforce federal

civil rights. Id. at 755–57. Moreover, the “‘plan of the

Convention’ includes certain waivers of sovereign

immunity to which all States implicitly consented at

the founding.” PennEast, 141 S. Ct. at 2258. Finally,

states may waive their immunity from suit by taking

voluntary actions inconsistent with a claim of

immunity. Gunter, 200 U.S. at 284 (“Immunity is a

privilege which may be waived; and hence, where a

state voluntarily become a party to a cause . . . it will

be bound thereby, and cannot escape the result of its

own voluntary act by invoking the prohibitions of the

11th Amendment.”).

At the same time, this Court has recognized that

property owners have a constitutional (and common

law) right to compensation when the government

13

takes property. Knick, 139 S. Ct. at 2171 (property

owners have a “claim for just compensation at the

time of the taking” (citing First English Evangelical

Lutheran Church of Glendale v. Los Angeles Cnty., 482

U.S. 304, 315 (1987))). Indeed, the Constitution

provides an owner with a “self-executing” right to seek

just compensation when a taking occurs. First

English, 482 U.S. at 316 n.9 (The Just Compensation

Clause, “of its own force, furnish[es] a basis for a court

to award money damages against the government.”

(citation omitted)); Jacobs v. United States, 290 U.S.

13, 16 (1933) (claims “based on the right to recover

just compensation for property taken” do not require

“[s]tatutory recognition” but are “founded upon the

Constitution”); Knick, 139 S. Ct. at 2171. The principle

that a property owner may demand payment for a

taking and that the states are sovereignly immune

from claims for damages exist in an uneasy tension.

Vicki C. Jackson, The Supreme Court, the Eleventh

Amendment, and State Sovereign Immunity, 98 Yale

L.J. 1, 116 (1988) (The “clarity of this textual provision

for a monetary remedy is inconsistent with a premise

of sovereign immunity as a constitutional doctrine[.]”).

Of course, the states were not originally bound by

the Fifth Amendment’s “just compensation”

requirement for a taking. Barron v. City of Baltimore,

32 U.S. (7 Pet.) 243, 247–51 (1833). However, this

changed with the enactment of the Fourteenth

Amendment. This event “‘fundamentally altered the

balance of state and federal power’” by “requir[ing] the

States to surrender a portion of the sovereignty that

had been preserved to them by the original

14

Constitution.” Alden, 527 U.S. at 756 (citation

omitted).3

The Due Process Clause is particularly relevant to

the Fourteenth Amendment’s limitation of state

power. That Clause prohibits states from “depriv[ing]

any person of . . . property, without due process of

law.” U.S. Const. amend. XIV, § 1. In Chicago, B. &

Q.R. Co., this Court held that the Due Process Clause

incorporated the Fifth Amendment and bound states

to the just compensation requirement. 166 U.S. at

233–34, 239–41; Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302, 306 n.1

(2002) (The Just Compensation Clause “applies to the

States as well as the Federal Government.”).4 Jurists

and commentators have recognized that state

sovereign immunity is antithetical to the states’

obligation to abide by the Just Compensation Clause

through the Fourteenth Amendment. Seamon, 76

Wash. L. Rev. at 1067–68 (“The principles of sovereign

immunity and just compensation are on a collision

course.”); Berger, 63 Wash. & Lee L. Rev. at 494.

This doctrinal conflict has become increasingly

important as states have taken a more active role in

the regulation of private property. In the modern era,

3 After the Civil War, secessionist states were required to ratify

the Fourteenth Amendment as a condition of readmission to the

Union, thus accepting the primacy of the United States

Constitution and corresponding reduction in individual state

sovereignty. United States v. States of Louisiana, Texas,

Mississippi, Alabama & Florida, 363 U.S. 1, 125 (1960).

4 See also, Dolan v. City of Tigard, 512 U.S. 374, 383 (1994); Penn

Central Transp. Co. v. New York City, 438 U.S. 104, 122 (1978);

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 827 (1987); Stop

the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560

U.S. 702, 717 (2010).

15

state entities, rather than local ones, are often the

source of property rules and conditions that

unconstitutionally take property rights. See, e.g.,

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021)

(takings challenge to state agency’s property access

regulation); Brown v. Legal Found. of Wash., 538 U.S.

216 (2003) (takings challenge to state rule requiring

confiscation of interest on lawyer funds).

Yet, when property owners challenge a state

taking of property in federal court, the defendant state

entities are quick to assert that sovereign immunity

prevents accountability. This occurs even in cases that

involve classic unconstitutional takings that should be

quickly resolved in favor of an award of compensation.

See O’Connor v. Eubanks, 83 F.4th 1018, 1024 (6th

Cir. 2023) (sovereign immunity barred a takings claim

challenging state officials’ confiscation of interest);

Zito v. N.C. Coastal Res. Comm’n, 8 F.4th 281, 290

(4th Cir. 2021) (dismissing, on sovereign immunity

grounds, a claim that a state’s refusal to allow

construction of a home prevented all economic use of

land and caused a taking); Ladd v. Marchbanks, 971

F.3d 574, 576 (6th Cir. 2020) (sovereign immunity

barred a claim in federal court seeking compensation

after state construction activities “flooded Plaintiffs’

properties three times and caused significant

damage”); Citadel Corp. v. Puerto Rico Highway

Auth., 695 F.2d 31, 33 n.4 (1st Cir. 1982) (sovereign

immunity barred a claim that a property owner was

owed compensation for a decades-long state “freeze”

on development).

This Court’s precedent holds that, of its own force,

the Fifth Amendment provides property owners with

an actionable compensation remedy for a taking in

16

federal court, whether that taking is caused by a state

or its subdivisions. Knick, 139 S. Ct. at 2172

(affirming that First English rejected “the view that

‘the Constitution does not, of its own force, furnish a

basis for a court to award money damages against the

government’” (citing First English, 482 U.S. at 316

n.9)). But this important constitutional right is hollow

if states can simply invoke sovereign immunity to

escape takings claims resting on the right to

compensation. Davis v. Mills, 194 U.S. 451, 457 (1904)

(“Constitutions are intended to preserve practical and

substantial rights, not to maintain theories.”). The

Court should close this loophole in the Just

Compensation Clause.

B. The Decision Below Conflicts with

Common Law Understandings and This

Court’s Precedent

The Eighth Circuit’s conclusion that North

Dakota is immune from Vohses’ claim that its laws

effect an unconstitutional physical taking of their

mineral interests is incompatible with the conditional

nature of the state’s power to take property and this

Court’s precedent.

1. The decision below conflicts with

historical common law understandings

about the limited, conditional nature of

the sovereign power to take property

Since the beginning of the Anglo-American legal

tradition, it has been understood that the sovereign

has the power to press private property into public

service. See In The Case of the King’s Prerogative in

Salt-peter, 12 Coke R. 13, C2 (1606) (The ability to

take property for the sovereign’s use “is an Incident

17

inseparable to the Crown, and cannot be granted,

demised, or transferred to any other, but ought to be

taken only by the Ministers of the King[.]”). At the

same time, the common law has long recognized that

use of the sovereign power to take property is

conditioned upon provision of compensation. Id. at C1

(concluding that the king’s ministers “are bound to

leave the Inheritance of the Subject in so good Plight

as they found it”).

In 1625, the legal scholar Grotius stated that

“the property of subjects is under the eminent

domain of the State, so that the State or he who

acts for it may use and even alienate and

destroy such property . . . . But it is to be added

that when this is done the State is bound to

make good the loss to those who lose their

property.”

Philip Nichols, The Power of Eminent Domain 8, § 7

(1909) (quoting Hugo Grotius, De Jure Belli et Pacis

(On the Law of War and Peace), lib. ii, e. 20 (1625))

(emphasis added). Blackstone made similar comments

when examining the sovereign’s power in post-Magna

Carta England, stating that the legislature can

“compel the individual to acquiesce,” to a taking,

though “[n]ot by absolutely stripping the subject of his

property in an arbitrary manner; but by giving a full

indemnification and equivalent for the injury thereby

sustained.” 1 William Blackstone, Commentaries on

the Laws of England 139 (1753) (emphasis added).

Thus, by the time of the American founding, it was

well-established that the sovereign power of eminent

domain was tethered to a duty to pay just

compensation to affected property owners. Such

18

payment was viewed as a “necessary attendant on the

due and constitutional exercise of the power of the

lawgiver, to deprive an individual of his property

without his consent.” 2 Kent, Commentaries at 144. As

an early state court decision explained, it was

a settled principle of universal law, that the

right to compensation, is an incident to the

exercise of that power [of eminent domain]: that

the one is so inseparably connected with the

other, that they may be said to exist not as

separate and distinct principles, but as parts of

one and the same principle.

Sinnickson v. Johnson, 17 N.J.L. 129, 145 (1839)

(emphasis added); see also, Cairo & Fulton R.R. Co. v.

Turner, 31 Ark. 494, 500 (1876) (“The duty to make

compensation . . . is regarded, by most enlightened

jurists, as founded in the fundamental principles of

natural right and justice, and as lying at the basis of

all wise and just government, independent of all

written constitutions or positive law.”).

Indeed, the power to appropriate property was

often viewed simply as a power to compel a sale of

property to the government. Thomas M. Cooley, A

Treatise on the Constitutional Limitations 559 (4th ed.

1878) (The power is “in the nature of a payment for a

compulsory purchase.”); Henry E. Mills & Augustus L.

Abbott, Mills on the Law of Eminent Domain, § 1, p. 6

(2d ed. 1888) (the power to take property is “in the

nature of a compulsory purchase of the property of a

citizen for the purpose of applying to public use”). This

view itself rests on the understanding that a taking

carries a sovereign obligation, and a concomitant

implied promise, to pay for the property. Great Falls

Mfg. Co., 112 U.S. at 656 (“The law will imply a

19

promise to make the required compensation, where

property, to which the government asserts no title, is

taken[.]”); Yearsley v. W.A. Ross Constr. Co., 309 U.S.

18, 21 (1940) (“[I]f the authorized action in this

instance does constitute a taking of property for which

there must be just compensation under the Fifth

Amendment, the Government has impliedly promised

to pay that compensation[.]”).5

The adoption of the Fifth Amendment to the

Constitution enshrined the preexisting common law

understanding that use of the sovereign power to take

property is contingent on a promise to pay

compensation. 3 Story, Commentaries 661 (The Fifth

Amendment “is an affirmance of a great doctrine,

established by the common law for the protection of

private property. It is founded in natural equity, and

is laid down by jurists as a principle of universal law.”

(emphasis added)); Young, 3 Ga. at 44 (The Just

Compensation Clause “does not create or declare any

new principle of restriction, either upon the legislation

of the National or State government, but simply

recognized the existence of a great common law

principle, founded in natural justice, especially

applicable to all republican governments, and which

derived no additional force, as a principle, from being

incorporated into the Constitution of the United

States.”). While the states were not bound by the Fifth

Amendment at the time of its adoption, they were

subject to the preexisting, underlying common law

5 If the government did not fulfill the implied promise to pay

compensation when taking property, the use of the power to take

property was considered illegitimate and void. Nichols, The

Power of Eminent Domain at 304, § 261 (“An act which contains

no sufficient provision for compensation may be treated by the

landowner as void[.]”).

20

principle that a taking of property comes with a

promise to compensate. Johnson, 17 N.J.L. at 146;

Cairo & Fulton R.R. Co., 31 Ark. 494.

The Eighth Circuit’s conclusion that North Dakota

is immune from a claim for just compensation simply

cannot be reconciled with these founding-era

understandings about the conditional nature of the

power to take property. More precisely, the lower

court’s conclusion is incompatible with the historical

understanding that the exercise of the sovereign right

to take property triggers a duty to compensate the

owner. Great Falls Mfg. Co., 112 U.S. at 656. The

states have known from the earliest days of the Union

that an obligation and promise to pay compensation

adheres to the power to confiscate private property.

Rogers v. Bradshaw, 20 Johns. 735, 745 (N.Y. 1823)

(“This equitable and constitutional title to

compensation, undoubtedly, imposes it as an absolute

duty on the legislature to make provision for

compensation

whenever

they

authorize

an

interference with private right.”).

Given the compensatory condition (and implied

promise to pay) attached to the power to take

property, when a state takes property, that action

itself waives immunity from an owner’s claim for

compensation. Gunter, 200 U.S. at 284 (A state

“cannot escape the result of its own voluntary act by

invoking the prohibitions of the 11th Amendment.”);

PennEast, 141 S. Ct. at 2258.

21

2. The decision below conflicts with this

Court’s Just Compensation Clause

precedent

In a long line of decisions culminating in Knick,

this Court has held that the Just Compensation

Clause provides a “self-executing” remedy for a

taking. The Clause itself gives property owners a

“claim for just compensation at the time of the taking.”

Knick, 139 S. Ct. at 2171 (citing First English, 482

U.S. at 315). Knick confirmed that a federal takings

claim premised on the right to compensation is

actionable in federal court as well as in state courts.

Id. at 2171–73.

Moreover, as previously noted, the Court has

repeatedly held that states are subject to the Just

Compensation Clause through its incorporation in the

Due Process Clause of the Fourteenth Amendment. In

Chicago, B. & Q.R. Co., this Court recognized that the

Due Process Clause applied to the states the same

preexisting, common law “just compensation”

principle that animates the Fifth Amendment. 166

U.S. at 238 (describing the just compensation

principle incorporated in the Due Process Clause as “a

principle of natural equity, recognized by all

temperate and civilized governments, from a deep and

universal sense of its justice”); see also, McDonald v.

City of Chicago, 561 U.S. 742, 760 (2010). The

adoption of the Due Process Clause confirmed that

states, too, are subject to the historical understanding

that use of the power to take property implies a

promise to pay compensation.

The Eighth Circuit’s conclusion that sovereign

immunity bars a claim seeking relief from an

uncompensated taking cannot be reconciled with this

22

jurisprudence. If (1) the Just Compensation Clause

authorizes a claim for relief from an uncompensated

taking (it does), (2) the states are bound by the Clause

through the Fourteenth Amendment (they are), and

(3) suits seeking relief under the Just Compensation

Clause are actionable in federal and state courts (they

are), there is no room to conclude that states are

immune from takings suits. See Allen v. Cooper, 555

F. Supp. 3d 226, 239 (E.D.N.C. 2021) (“the text of the

Fifth Amendment seems to require the government to

provide money damages despite any applicable

sovereign immunity bars”); Nichols, The Power of

Eminent Domain at 302, § 259 (“[T]he Fourteenth

Amendment throws the protection of the United States

courts over an individual whose property is taken by

authority of a State without compensation; such a

deprivation would not be by due process of law.”

(emphasis added)).

Indeed, this Court has held that Congress can

enact legislation to enforce rights protected by the

Fourteenth Amendment without violating sovereign

immunity. Fitzpatrick v. Bitzer, 427 U.S. 445, 456

(1976). If so, enactment of the Due Process Clause

should itself abrogate sovereign immunity from

takings claims because it incorporates the “selfexecuting” just compensation remedy for a taking.

Berger, 63 Wash. & Lee L. Rev. at 519 (“[T]he straight

textual argument seems to require the government to

provide

money

damages

[for

a

taking],

notwithstanding otherwise applicable sovereign

immunity bars.”).

In First English, this Court appeared to agree that

the self-executing and explicitly remedial nature of

the Just Compensation Clause overrides sovereign

23

immunity. There, the United States argued as amicus

that “principles of sovereign immunity” prevented the

Court from interpreting the Just Compensation

Clause as “a remedial provision.” Brief for the United

States as Amicus Curiae Supporting Appellee, No. 851199, 1986 WL 727420, at *26–30 (U.S. Nov. 4, 1986).

But the Court rejected this contention. First English,

482 U.S. at 316 n.9. Although this portion of the First

English opinion does not fully address the sovereign

immunity/takings issue, it strongly suggests that the

Court did not consider just compensation claims to be

impeded by sovereign immunity. City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714

(1999) (citing First English in questioning whether

sovereign immunity “retains its vitality” in the

context of compensation-seeking takings claims);

Lucien v. Johnson, 61 F.3d 573, 575 (7th Cir. 1995)

(stating that First English held that “the Constitution

requires a state to waive its sovereign immunity to the

extent necessary to allow claims to be filed against it

for takings of private property for public use”); see

also, Catherine T. Struve, Turf Struggles: Land,

Sovereignty, and Sovereign Immunity, 37 New Eng. L.

Rev. 571, 574 (2003); 1 Laurence H. Tribe, American

Constitutional Law § 6–38, at 1272 (3d ed. 2000)

(observing, based on First English, that the Takings

Clause “trumps state (as well as federal) sovereign

immunity”).

Moreover, since First English, the Court has

regularly resolved takings claims against states

without concern for sovereign immunity barriers,

reinforcing the perception that there is no such

barrier. See Lucas v. S.C. Coastal Council, 505 U.S.

1003 (1992), Tahoe-Sierra, 535 U.S. 302; see generally,

Manning v. N.M. Energy, Minerals & Natural Res.

24

Dep’t, 144 P.3d 87, 90 (N.M. 2006) (noting the Court

“has consistently applied the Takings Clause to the

states, and in so doing recognized, at least tacitly, the

right of a citizen to sue the state under the Takings

Clause”). Indeed, in Palazzolo v. Rhode Island, 533

U.S. 606 (2001), one amicus curiae brief directly

raised sovereign immunity as a potential bar to the

takings claim, but the Court ignored the argument.

See Amicus Brief of the Board of County

Commissioners of the County of La Plata, Colorado, in

Support of Respondents, No. 99-2047, 2001 WL 15620,

at *20–21 (U.S. Jan. 3, 2001).

In short, the Eighth Circuit’s conclusion that

sovereign immunity prevents the court from

adjudicating the Vohses’ federal takings claim cannot

be squared with this Court’s Takings Clause

precedent. Hair v. United States, 350 F.3d 1253, 1257

(Fed. Cir. 2003) (“[S]overeign immunity does not

protect the government from a Fifth Amendment

Takings claim because the constitutional mandate is

‘self-executing.’”); Leistiko v. Sec’y of Army, 922 F.

Supp. 66, 73 (N.D. Ohio 1996) (“The Just

Compensation Clause, with its self-executing

language, waives sovereign immunity because it can

fairly be interpreted as mandating compensation by

the government for the damage sustained.”); Eric

Grant, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause, 91

Nw. U. L. Rev. 144, 199 (1996) (“It is a proposition too

plain to be contested that the Just Compensation

Clause of the Fifth Amendment is ‘repugnant’ to

sovereign immunity and therefore abrogates the

doctrine[.]”).

25

II.

THE EIGHTH CIRCUIT’S

RELIANCE ON THE DUE PROCESS

ANALYSIS IN REICH CONFLICTS

WITH THIS COURT’S PRECEDENT

The decision below relies largely on this Court’s

decision in Reich v. Collins, 513 U.S. 106, in

concluding that the self-executing right to seek

compensation does not exempt takings claimants from

state sovereign immunity barriers. See App. 10a. This

conclusion cannot be squared with this Court’s

precedent.

In Reich, the Court held that the Due Process

Clause requires states to provide a refund remedy

when the state unconstitutionally collects taxes. 513

U.S. at 108–09; see also McKesson Corp. v. Div. of

Alcoholic Beverages & Tobacco, 496 U.S. 18, 32 (1990)

(noting the “State’s obligation to provide retrospective

relief as part of [a] postdeprivation procedure”). In so

holding, Reich concluded that sovereign immunity is

not a bar: “‘[A] denial by a state court of a recovery of

taxes exacted in violation of the laws or Constitution

of the United States by compulsion is itself in

contravention of the Fourteenth Amendment,’ the

sovereign immunity States traditionally enjoy in their

own courts notwithstanding.” 513 U.S. at 109–10

(citation omitted).

However, in dicta, the Court observed that “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 110 (citing Ford Motor Co. v. Dep’t of Treasury

of Ind., 323 U.S. 459 (1945)) (emphasis added). Some

26

circuit court decisions, including the one below,

conclude that Reich’s due-process-based sovereign

immunity analysis resolves the issue of whether

sovereign immunity bars an unconstitutional taking

claim. This conclusion lacks any support in this

Court’s precedent.

Reich itself says nothing about the Takings Clause

or the just compensation remedy. It deals with the

“recovery of taxes,” which does not implicate the

Takings Clause. Tyler v. Hennepin Cnty., 598 U.S.

631, 637 (2023). Moreover, the Court has repeatedly

held that cases decided under the Due Process Clause

fail to provide an analytic template for takings cases.

Takings questions cannot be resolved by due process

precedent. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,

536–37, 541–42 (2005) (divorcing takings and due

process principles; the “Takings Clause . . . ‘is

designed not to limit the governmental interference

with property rights per se, but rather to secure

compensation in the event of otherwise proper

interference amounting to a taking’” (quoting First

English, 482 U.S. at 315)); Knick, 139 S. Ct. at 2174

(“[T]he analogy from the due process context to the

takings context is strained . . . .”).

The precedent also reveals two specific distinctions

that preclude treating the Just Compensation Clause

remedy like the tax refund remedy available under

the Due Process Clause and discussed in Reich. First,

the Due Process Clause tax refund remedy does not

have the same historical pedigree as the Just

Compensation Clause. No ancient common law

principle holds that the sovereign power to tax is

contingent on the provision of a tax refund remedy.

McKesson, 496 U.S. at 32. On the other hand, as

27

discussed above, the just compensation remedy for a

taking does trace to a historical common law rule that

the sovereign power to take property includes an

implied agreement to compensate. Reich’s due

process-based sovereign immunity analysis does not

account for this difference.

Second, unlike the Just Compensation Clause, the

due process tax remedy is not self-enforcing in federal

court. It is enforceable only in state court. Reich, 513

U.S. at 109 (“a denial by a state court of a recovery of

taxes exacted in violation of the laws or Constitution

of the United States by compulsion is itself in

contravention of the Fourteenth Amendment”

(emphasis added; citation omitted)); 28 U.S.C. § 1341

(“The district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any tax

under State law where a plain, speedy and efficient

remedy may be had in the courts of such State.”); see

also Fair Assessment in Real Estate Ass’n, Inc. v.

McNary, 454 U.S. 100, 105 (1981) (holding tax claims

non-justiciable in federal court). Again, the Just

Compensation Clause is self-executing in federal court

(as well as in state court). Knick, 139 S. Ct. at 2172

(“[B]ecause a taking without compensation violates

the self-executing Fifth Amendment at the time of the

taking, the property owner can bring a federal suit at

that time.” (emphasis added)); United States v. Clarke,

445 U.S. 253, 257 (1980) (“A landowner is entitled to

bring such an [inverse condemnation] action as a

result of the self-executing character of the

constitutional

provision

with

respect

to

compensation[.]” (quotations & citation omitted)).

Given this important difference, Riech’s due

process-based sovereign immunity analysis is

28

inapplicable to a takings claim. Since due process tax

refund claims are not enforceable in federal court,

while just compensation claims are, Knick, 139 S. Ct.

at 2171–73, Reich’s conclusion that sovereign

immunity bars a due process claim in federal court,

513 U.S. at 110, has no bearing on Just Compensation

Clause claims. In sum, Reich simply does not address

the issue here: whether a constitutional remedy that

is self-executing and enforceable in federal court

functions as an exception to sovereign immunity in

that forum. The lower court’s reliance on Reich to hold

that sovereign immunity bars the Vohses’ claims is

not consistent with this Court’s Just Compensation

Clause precedent.

One additional comment is warranted. In

justifying its decision, the Eighth Circuit observed

that sovereign immunity “bars a claim against the

State in federal court as long as state courts remain

open to entertain the action.” App. 10a (emphasis

added). The lower court cites several circuit court

opinions in support of this proposition, but these

decisions ultimately also rely on Reich, see, e.g., Seven

Up Pete Venture v. Schweitzer, 523 F.3d 948, 955 (9th

Cir. 2008), and are inapposite for the reasons stated

above. Moreover, this Court has made clear that

sovereign immunity applies equally in federal and

state courts. Franchise Tax Bd. of Cal. v. Hyatt, 139 S.

Ct. 1485, 1493 (2019); Alden, 527 U.S. at 731, 754 (“we

hold that the States retain immunity from private suit

in their own courts”). If state courts are “open” to

claims under the Just Compensation Clause

notwithstanding sovereign immunity, Manning, 144

P.3d 87, there is no basis for a different result in

federal court. McDonald, 561 U.S. at 765 (“[I]t would

be ‘incongruous’ to apply different standards

29

‘depending on whether the claim was asserted in a

state or federal court.’” (quoting Malloy v. Hogan, 378

U.S. 1, 10–11 (1964))).

Takings claims seeking a remedy under the Just

Compensation Clause are either exempt from

sovereign immunity or they are not. They are—not

because of what state courts are doing, but because of

what the Constitution already did: enshrined the

preexisting understanding that a duty to pay

compensation accompanies an exercise of the power to

take property and waives a state’s claim of sovereign

immunity.

CONCLUSION

The Court should grant the Petition.

DATED: January 2024.

Respectfully submitted,

JOSHUA A. SWANSON

J. DAVID BREEMER

Vogel Law Firm

Counsel of Record

218 NP Avenue

DEBORAH J. LA FETRA

PO Box 1389

Pacific Legal Foundation

Fargo, ND 58107-1389

555 Capitol Mall, Suite 1290

Telephone: (701) 237-6983 Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

Counsel for Petitioners