Petition for Writ of Certiorari — BAS, LLC, Petitioner v. Tommy Land, in His Official Capacity as Commissioner of State Lands for the State of Arkansas

Supreme Court briefFeb 2, 2026

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No.

In the Supreme Court of the United States

_________

BAS, LLC,

Petitioner,

TOMMY LAND, IN HIS OFFICIAL CAPACITY AS

COMMISSIONER OF STATE LANDS

FOR THE STATE OF ARKANSAS,

Respondent.

_________

On Petition For A Writ Of Certiorari

To The Supreme Court Of Arkansas

_________

PETITION FOR A WRIT OF CERTIORARI

_________

JOSEPH R. FALASCO

Quattlebaum, Grooms &

Tull PLLC

111 Center Street

Suite 1900

Little Rock, AR 72201

ROBERT H. THOMAS

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

(916) 419-7111

RThomas@pacificlegal.org

AARON NEWELL

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

Counsel for Petitioner

QUESTION PRESENTED

To collect an unpaid $9,897.88 property tax bill, the

Arkansas Commissioner of State Lands foreclosed

and auctioned an office building and land owned by

BAS worth over $1,500,000. To avoid violating the

Fifth Amendment for an unconstitutional taking, the

Commissioner was obligated to return the equity to

BAS. Tyler v. Hennepin County, 598 U.S. 631 (2023).

When the Commissioner did not do so, BAS sued in an

Arkansas court for a de facto taking. The Arkansas

Supreme Court, however, categorically barred BAS’s

federal takings claim because the Commissioner had

not waived sovereign immunity under the Arkansas

Constitution.

The question presented is:

Does a state’s Fifth and Fourteenth Amendment obligation to pay just compensation waive sovereign immunity when it takes private property?

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner BAS, LLC, was plaintiff-appellee in all

proceedings below. Petitioner BAS, LLC, is a limited

liability company that has no parent corporation and

no stock.

Respondent Tommy Land, Commissioner of State

Lands, is an elected constitutional officer of the State

of Arkansas, defendant-appellant below.

STATEMENT OF RELATED CASES

These proceedings are directly related to the abovecaptioned case under Rule 14.1(b)(iii):

BAS, LLC v. Land, No. 28CV-22-388 (Ark. Cir. Ct.

Sep. 5, 2025)

Land v. BAS, LLC, No. CV-24-645, 713 S.W.3d 1

(Ark. June 5, 2025)

BAS, LLC v. Land, No. 3:25-cv-00224-BSM (E.D.

Ark. 2025)

iii

TABLE OF CONTENTS

Petition for a 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 ................................................ 5

A. Facts ............................................................. 5

B. Procedural history ....................................... 7

Reasons for Granting the Petition ........................... 11

Lower Courts Are Divided Whether Sovereign

Immunity Conflicts with the Textual

Requirement of Just Compensation ............. 12

II. The Decision Below Conflicts with CommonLaw Understandings, and This Court’s

Precedent ........................................................ 18

A. The decision below conflicts with historical

common-law understandings about the

limited, conditional nature of the sovereign

power to take property ............................. 19

B. The decision below conflicts with this

Court’s just compensation clause

precedent ................................................... 24

Conclusion ................................................................. 29

APPENDIX

Supreme Court of Arkansas, No. CV-24-645,

Opinion, filed June 5, 2025................................... 1a

Circuit Court of Greene County, Arkansas,

No. 28CV-22-388, “Revised” Order Denying

Motion for Summary Judgment,

filed September 5, 2024 ...................................... 25a

Supreme Court of Arkansas, No. CV-24-645,

Order Denying Petition for Rehearing,

filed September 4, 2025. ..................................... 29a

Circuit Court of Greene County, Arkansas,

No. 28CV-22-388, First Amended Complaint,

filed March 6, 2024 ............................................. 30a

Circuit Court of Greene County, Arkansas,

No. 28CV-22-388, Excerpts of 30(b)(6)

Deposition Transcript of Dr. Gary Solnit,

taken July 19, 2024 ............................................ 43a

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine,

527 U.S. 706 (1999) ................................... 9, 12, 14

Attorney-General v. De Keyser’s

Royal Hotel, Ltd.,

[1920] AC 508 ...................................................... 20

Barron v. City of Baltimore,

32 U.S. (7 Pet.) 243 (1833) ............................. 13-14

Bay Point Props., Inc. v.

Mississippi Transp. Comm’n,

937 F.3d 454 (5th Cir. 2019) ................................. 4

Board of Trustees of the University of

Arkansas v. Andrews,

2018 Ark. 12, 535 S.W.3d 616 ............................. 10

Brown v. Legal Found. of Wash.,

538 U.S. 216 (2003) ............................................. 16

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

31 Ark. 494 (1876) ......................................... 21, 23

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ............................................. 16

Chicago, Burlington & Quincy R.R. Co.

v. City of Chicago,

166 U.S. 226 (1897) .............................. 3, 14, 25-26

Citadel Corp. v. Puerto Rico Highway

Auth., 695 F.2d 31 (1st Cir. 1982) ....................... 16

City of Monterey v. Del Monte Dunes at

Monterey, 526 U.S. 687, 714 (1999) .................... 27

Cmty. Hous. Improvement Program v.

City of N.Y., 492 F. Supp. 3d 33

(E.D.N.Y. 2020)...................................................... 4

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ............................................... 1

Davis v. Mills,

194 U.S. 451 (1904) ............................................. 25

Dolan v. City of Tigard,

512 U.S. 374 (1994) ............................................. 15

EEE Minerals, LLC v. North Dakota,

81 F.4th 809 (8th Cir. 2023) ................................ 16

First English Evangelical Lutheran

Church v. Los Angeles Cnty.,

482 U.S. 304 (1987) .................. 4, 13, 17, 24-25, 27

Fulton v. Fulton Cnty. Bd. of Comm’rs,

148 F.4th 1224 (11th Cir. 2025) ..................... 17-18

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

200 U.S. 273 (1906) ....................................... 12, 24

Hair v. United States,

350 F.3d 1253 (Fed. Cir. 2003)............................ 28

Hans v. Louisiana,

134 U.S. 1 (1890) ................................................. 12

Haywood v. Drown,

556 U.S. 729 (2009) ........................................ 10-11

Howell v. Miller,

91 F. 129 (6th Cir. 1898) ................................ 23-24

In The Case of the King’s Prerogative in

Salt-peter, 12 Coke R. 13 (1606).......................... 19

Jacobs v. United States,

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

vii

Jones v. Flowers,

547 U.S. 220 (2006) ............................................... 8

Knick v. Twp. of Scott,

588 U.S. 180 (2019) .............................. 4, 13, 24-25

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) ............................... 16

Larson v. Domestic & Foreign

Commerce Corp.,

337 U.S. 682 (1949) ............................................. 17

Leistiko v. Sec’y of Army,

922 F. Supp. 66 (N.D. Ohio 1996) ....................... 28

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ...................................... 27-28

Lucien v. Johnson,

61 F.3d 573 (7th Cir. 1995) ................................. 27

Malone v. Bowdoin,

369 U.S. 643 (1962) ............................................. 17

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

Natural Res. Dep’t,

144 P.3d 87 (N.M. 2006) ...................................... 28

McDonald v. City of Chicago,

561 U.S. 742 (2010) ........................................ 14-15

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ............................................. 15

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) .............................. 16

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 28

Penn Central Transp. Co. v.

New York City,

438 U.S. 104 (1978) ............................................. 15

viii

PennEast Pipeline Co., LLC v.

New Jersey,

594 U.S. 482 (2021) ............................. 4, 12, 17, 24

Rogers v. Bradshaw,

20 Johns. 735 (N.Y. Ct. Err. 1823)...................... 24

Saenz v. Roe,

526 U.S. 489 (1999) ............................................. 15

Sinnickson v. Johnson,

17 N.J.L. 129 (1839) ...................................... 21, 23

The Slaughterhouse Cases,

83 U.S. 36 (1873) ................................................. 15

Stop the Beach Renourishment, Inc. v.

Fla. Dep’t of Env’t Prot.,

560 U.S. 702 (2010) ............................................. 15

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ....................................... 15, 28

Timbs v. Indiana,

586 U.S. 146 (2019) ............................................. 15

Tyler v. Hennepin County,

598 U.S. 631 (2023) .................................... 2, 4, 8-9

United States v. Lee,

106 U.S. 196 (1882) ............................................. 17

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) .............................. 3, 21-22, 24

United States v.

Klamath & Moadoc Tribes,

304 U.S. 119 (1938) ............................................. 22

United States v. States of Louisiana,

Texas, Mississippi, Alabama &

Florida,

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

Vill. of Norwood v. Baker,

172 U.S. 269 (1898) ............................................. 26

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

309 U.S. 18 (1940) .......................................... 21-22

Young v. McKenzie,

3 Ga. 31 (1847) ................................................. 3, 23

Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281 (4th Cir. 2021) .............................. 3, 16

Constitutions

U.S. Const. amend. V ........... 1-3, 7-8, 11, 13-15, 17-18,

22-23, 25-26, 28

U.S. Const. amend. XIV ............. 1-3, 6-7, 12, 14, 25-27

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

U.S. Const. art. VI, cl. 2 .............................................. 2

Ark. Const. art. 2, § 22.............................................. 10

Ark. Const. art. 5, § 20....................................... 7, 9-11

Statutes

28 U.S.C. § 1257 .......................................................... 1

Rule of Court

Ark. R. App. P.–Civ. 2(a)(10) ...................................... 8

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) ............................................... 28

Berger, Eric, The Collision of the

Takings and State Sovereign

Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ................. 4, 15

1 Blackstone, William, Commentaries

on the Laws of England (1753) ...................... 19-20

Brief for the United States as Amicus

Curiae Supporting Appellee,

First English Evangelical Lutheran

Church of Glendale. v. County of Los

Angeles, No. 85-1199,

1986 WL 727420 (U.S. Nov. 4, 1986) .................. 27

Cong. Globe, 39th Cong.,

1st Sess. (1866) .................................................... 14

Cooley, Thomas M., A Treatise on the

Constitutional Limitations

(4th ed. 1878) ....................................................... 22

Grant, Eric, A Revolutionary View of the

Seventh Amendment and the Just

Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) .............................. 28

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) ...................................... 3, 21

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

Mills on the Law of Eminent Domain

(2d ed. 1888)......................................................... 22

Nichols, Philip, The Power of Eminent

Domain (1909) .................................... 19, 22, 26-27

Seamon, Richard H., The Asymmetry of

State Sovereign Immunity,

76 Wash. L. Rev. 1067 (2001).......................... 4, 15

3 Story, Joseph, Commentaries on the

Constitution of the United States

(1873) ................................................................... 23

Struve, Catherine T., Turf Struggles:

Land, Sovereignty, and Sovereign

Immunity, 37 New Eng. L. Rev. 571

(2003) ................................................................... 27

1 Tribe, Laurence H., American

Constitutional Law (3d ed. 2000) ........................ 27

PETITION FOR A WRIT OF CERTIORARI

BAS, LLC, respectfully petitions for a writ of certiorari to review the judgment of the Supreme Court of

Arkansas.

OPINIONS BELOW

The opinion of the Arkansas Supreme Court is reported at 713 S.W.3d 1 (Ark. June 5, 2025) and reprinted at App. 1a. The order denying rehearing is

reprinted at App. 29a.

JURISDICTION

This case arises under the Fifth and Fourteenth

Amendments to the United States Constitution. Petitioner brought a claim for just compensation under

the Fifth and Fourteenth Amendments against Respondent, an Arkansas official sued in his official capacity, in state court. The Arkansas Circuit Court rejected Respondent’s claim of sovereign immunity. Respondent appealed to the Arkansas Supreme Court,

which held that Respondent enjoyed sovereign immunity under the Arkansas Constitution from Petitioner’s federal constitutional claims. App. 1a-24a.

That court denied rehearing on September 4, 2025.

App. 29a. This Court granted an extension to file this

Petition until February 1, 2026.

The Court has jurisdiction under 28 U.S.C. § 1257.

See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 479

(1975) (holding that 28 U.S.C. § 1257 allows jurisdiction in this Court when “the case is for all practical

purposes concluded, [so] the judgment of the state

court on the federal issue is deemed final”).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Supremacy Clause of the U.S. Constitution provides, “[t]his Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

The Fifth Amendment to the U.S. Constitution provides, in relevant part, “nor shall private property be

taken for public use, without just compensation.”

Section 1 of the Fourteenth Amendment to the U.S.

Constitution provides in pertinent part, “No state

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

After the Commissioner sold BAS’s property to satisfy a tax debt but failed to return the equity, BAS

sued for a Tyler taking. See Tyler, 598 U.S. at 642

(“[A] taxpayer is entitled to the surplus in excess of

the debt owed.”). The Arkansas Supreme Court held

the Commissioner enjoys sovereign immunity from

BAS’s federal constitutional claim. This petition is the

latest presenting an unresolved and lingering question, as it highlights the “tension” between the government’s general immunity from civil claims, and the

self-executing obligation to provide just compensation

when the government has taken private property.

See, e.g., Zito v. N.C. Coastal Res. Comm’n, 8 F.4th

281, 290 (4th Cir. 2021).

Although sovereign immunity may generally bar

claims against the government, since the beginning of

the Republic, this power has been conditioned on an

implicit agreement to pay compensation when taking

private property. As explained by Chancellor Kent,

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 natural equity, and is laid

down by jurists, as an acknowledged principle of

universal law.

2 James Kent, Commentaries on American Law 144

(1827); United States v. Great Falls Mfg. Co., 112 U.S.

645, 661 (1884) (takings clauses reflect the preexisting

understanding that the sovereign’s power to take

property includes a promise to pay compensation);

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).

Adoption of the Fourteenth Amendment expressly

recognized the Fifth Amendment’s check on sovereign

power limits states and their instrumentalities. Chicago, Burlington & Quincy R.R. Co. v. City of Chicago,

166 U.S. 226, 235-41 (1897). This Court recognizes

that the “self-executing” nature of this obligation,

which needs no additional government action, and

that a property owner may sue if her property has

been de facto taken, but the government has not provided compensation. First English Evangelical Lutheran Church v. Los Angeles Cnty., 482 U.S. 304, 315

(1987); Knick v. Twp. of Scott, 588 U.S. 180, 190-91

(2019). Immunizing a state from a federal takings

claim is incompatible with these principles and their

history because 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, 594 U.S. 482, 500 (2021) (The “‘plan of the Convention’ includes certain waivers of sovereign immunity to which all States implicitly consented at the

founding.”). Yet the Arkansas Supreme Court concluded that the Commissioner, as an agent of the sovereign, enjoys immunity from BAS’s Tyler takings

claim. App. 12a-13a.

This Court has yet to directly resolve the conflict

between the right to judicial relief for a de facto taking, and sovereign immunity. See Richard H. Seamon,

The Asymmetry of State Sovereign Immunity, 76

Wash. L. Rev. 1067, 1067-68 (2001) (“The principles of

sovereign immunity and just compensation are on a

collision course . . . [and] the Supreme Court has never

answered that question.”); 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”); Cmty. Hous. Improvement Program v. City of N.Y., 492 F. Supp. 3d 33, 40

(E.D.N.Y. 2020) (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

in their own courts from claims of unconstitutional

takings. 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”).

STATEMENT OF THE CASE

A. Facts

In 2009, Barbara Arlene Solnit’s health was failing.

Her sons, Drs. Gary and Jay Solnit, were heavily involved in her care and were granted power of attorney

for her. Depo. Tr. of Dr. Gary Solnit (App. 45a).

Gary and Jay decided to invest the wealth she had

saved up for years as a way to provide a steady stream

of income for her health needs and her care. Ibid. In

2016, they formed BAS, LLC—an acronym for their

mother’s name—in order to purchase property containing a Dollar General store in Paragould, Arkansas. Id. at 47a.

At the time BAS purchased the property, the closing agent mistakenly recorded Gary’s home address in

California, where he was renting, as the address of

record for the buyer on the title. Ibid. When Gary

noticed this mistake, he emailed his lawyer to have it

corrected. Ibid. Despite that, it was not corrected,

and the property tax statements were sent to that address in 2017 and 2018. While Gary was still living

there in 2017, a property tax statement was sent to

his home address. Id. at 46a. He subsequently sent

an email to his lawyer asking for help in determining

whether BAS was responsible for the property taxes

or whether Dollar General had to pay them under the

lease between Dollar General and BAS. Ibid. Gary

never followed up on this email, as he moved from that

address soon after, and when the property tax statement was sent to his old address thereafter, BAS

never received it. Ibid.

In 2021 the property was certified to the Commissioner for non-payment of taxes for the years 2017 and

2018. App 2a. The Commissioner subsequently conducted a Records and Lien Search Request for the

property, which revealed BAS as the record owner of

the property and that BAS’s address was 3735 Winford Drive, Tarzana, California, 91356, Gary’s old

rental address. Ibid.

On August 17, 2021, the Commissioner sent a notice of delinquency and future tax sale to BAS at the

Winford address. Ibid. The notice stated that the

property would be sold on August 2, 2022, if BAS

failed to pay the taxes it owed on the property. Ibid.

Despite being sent by certified mail with a return

receipt requested, the Commissioner never received a

return receipt for the notice. Ibid. USPS tracking

data showed that it was delivered to a front desk, reception area, or mail room at the Tarzana address, despite that address not having such rooms. Ibid.

The Commissioner sent a notice of delinquency to

the property’s physical address in Paragould, Arkansas, which was returned to sender as undelivered.

Ibid. Neither Gary nor Jay, nor anybody representing

BAS, received the notice of delinquency.1

1 BAS also brought a due process claim under the Fourteenth

Amendment in the state proceedings below. This petition does

not present a question as to that claim.

The Commissioner sold BAS’s property to third parties on August 2, 2022 for less than 3% of its fair market value.2 App. 37a. The Commissioner subsequently executed a limited warranty deed in favor of

those parties. App. 34a.

B. Procedural History

In October 2020, BAS sued the Commissioner in the

Circuit Court of Greene County, Arkansas. BAS

amended its complaint on March 6, 2024. App. 28a.

The Amended Complaint asserted a due process violation related to the lack of notice, and a Fifth and Fourteenth Amendment takings claim. App. 36a-38a.

BAS’s takings claim sought just compensation, declaratory relief, and an order setting aside the tax sale.

App. 35a-38a.

The Commissioner moved for summary judgment,

arguing in part that the state’s sovereign immunity,

recognized by the Arkansas Constitution, barred

BAS’s claims. App. 24a. See Ark. Const. art. 5, § 20

(“The State of Arkansas shall never be made defendant in any of her courts.”). The Arkansas Supreme

Court has recognized a limited exception to this seemingly categorical language: the state cannot claim sovereign immunity if it has acted unconstitutionally.

App. 5a. The circuit court denied the Commissioner’s

2 The property was purchased at auction for $26,654.78. See

Limited Warranty Deed, Ex. 11 to First Amended Complaint, No.

28CV-22-388 (Ark. Cir. Ct. Mar. 6, 2024). The fair market value

of the property is estimated to be worth more than $1,000,000.

See Commissioner of State Land Records and Lien Search

Request, Ex. 2 to First Amended Complaint, No. 28CV-22-388

(Ark. Cir. Ct. Mar. 6, 2024) (showing a 2016 estimated sale price

of $1,313,000).

claim for immunity, concluding that that BAS had sufficiently alleged it met the exception for an unconstitutional act. App. 25a-26a.

The Commissioner appealed.3 The fractured Arkansas Supreme Court reversed 5-1-2,with the majority holding that BAS’s federal takings claim was

barred by the State’s sovereign immunity because

BAS had not shown a taking occurred.

The majority recognized (as it must) that in Tyler

this Court held the Fifth Amendment forbids government from keeping excess equity after a valid tax sale,

See App. at 12a-13a (“[T]ax sales represent a ‘mandated ‘contribution from individuals . . . for the support of the government . . . for which they receive compensation in the protection which government affords.’”) (quoting Tyler, 598 U.S. at 637). The majority

also recognized that lawsuits for declaratory or injunctive relief against state officials who commit “ultra

vires, unconstitutional, or illegal acts,” are not subject

to claims of sovereign immunity. App. 18a (citation

omitted). But the majority viewed BAS’s federal takings claim solely as a reframed due process challenge.

See App. 12a (“BAS’s takings claims rely on the argument that—under Jones [v. Flowers, 547 U.S. 220

(2006)]—a tax sale without proper notice constitutes

a taking under both the Fifth Amendment and the Arkansas Constitution.”). The majority concluded that

because the forfeiture and sale process was not unfair,

3 Arkansas treats rulings on sovereign immunity as meriting

appellate review separate from the merits of the case. See Ark.

R. App. P.–Civ. 2(a)(10) (allowing immediate appeals of “[a]n

order denying a motion to dismiss or for summary judgment

based on the defense of sovereign immunity or the immunity of a

government official”).

BAS “has failed to allege or offer evidence of an unconstitutional or illegal act that would overcome sovereign immunity[,] and granted the Commissioner summary judgment. App. 13a. The majority did not address the Tyler takings claims.

The majority also rejected an argument that the Supremacy Clause overrides any state-law immunities.

Ibid. (“One loose end remains.”). The majority recognized that this Court “has recognized narrow exceptions to the general rule—like where ‘[t]he State have

consented’ to be sued ‘pursuant to the plan of the Convention or to subsequent constitutional Amendment.’”

App. 14a (quoting Alden v. Maine, 527 U.S. 706, 755

(1999)). But the majority again sidestepped the Tyler

takings claim and cast the takings claim as merely a

challenge to the foreclosure and sale procedures, not

the Commissioner’s retention of BAS’s equity. App.

15a (“And nothing in the federal constitution suggests

BAS is entitled to press claims that fail as a matter of

federal law.”).

Justice Womack dissented, first noting that “[t]his

case exemplifies how messy this court’s sovereign immunity jurisprudence is.” App. 20a.4 He stated that

the original public meaning of the term “never” in article 5, section 20 of the Arkansas Constitution means

that—“absent an express constitutional provision to

the contrary”—that the State may never be sued in its

4 Justice Hudson also dissented, focusing on the due process

claim.

She concluded that “[s]overeign immunity is not

applicable when, as here, a plaintiff alleges unconstitutional

state action and seeks only injunctive relief, not damages.” App.

18a.

own courts.5 Justice Womack pointed to the Takings

Clause of the Arkansas Constitution as the “express

constitutional provision to the contrary,” noting that

“[t]he only true exceptions to article 5 section 20 are

those that are found in the Arkansas Constitution or,

as explained later, are imposed by the Supreme Court

of the United States.” App. 21a (citing Ark. Const. art.

2, § 22 (“The right of property is before and higher

than any constitutional sanction; and private property

shall not be taken, appropriated or damaged for public

use, without just compensation therefor.”)).

Justice Womack concluded that “[f]or BAS’s federal

claims, Haywood v. Drown prohibits this court from

kicking them solely because of sovereign immunity.”

App. 23a. He wrote:

In Haywood, the Supreme Court held that states

cannot “shut the courthouse door to federal

claims that [they] consider[] at odds with [their]

local policy”—i.e., article 5, section 20. According

to the Supreme Court, this “invocation of ‘jurisdiction’ as a trump” to end federal claims in state

Chief Justice Baker concurred in part and dissented in part.

Relying on Board of Trustees of the University of Arkansas v.

Andrews, 2018 Ark. 12, at 13, 535 S.W.3d 616, 624, she

emphasized that, unless and until Andrews is overruled, article

5, § 20’s “never” forecloses suits against the State—even those

seeking declaratory or injunctive relief—so the state-law claims

must be dismissed; she would not, however, bar the federal

claims on state sovereign-immunity grounds. App. 17a (Baker,

C.J., concurring in part and dissenting in part); see Andrews,

2018 Ark. at 12 (Baker, J., dissenting) (arguing that the

majority’s expansive sovereign-immunity reading “leaves the

state of law on sovereign immunity in complete disarray” and

“effectively revived the antiquated doctrine that ‘the king can do

no wrong.’”).

court is unconstitutional under the Supremacy

Clause. Under a proper reading of article 5, section 20, this is exactly what sovereign immunity

does to BAS’s federal claims. Because of Haywood, Land is not entitled to claim sovereign immunity as a shield from BAS’s federal claims at

this stage.

Ibid. (quoting Haywood v. Drown, 556 U.S. 729, 740

(2009) (footnotes omitted)).

REASONS FOR GRANTING THE PETITION

A general immunity from lawsuits to which the government has not consented is a core attribute of sovereignty. Yet, recognizing that the sovereign’s ability

to take private property against the owner’s will is the

harshest civil power government wields, the AngloAmerican tradition has always limited this power

with a corresponding responsibility—the duty to pay

just compensation to those whose property is taken.

These two principles—states’ 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 Fifth Amendment taking of property by a state, the principles are in irreconcilable conflict, and must be harmonized.

In the decision below, the Arkansas Supreme Court

subjugated the right to just compensation in favor of

the State’s sovereign immunity. This decision raises

an important and recurring issue. It conflicts with

historical understandings about the nature of the sovereign power to take property, and with this Court’s

jurisprudence.

LOWER COURTS ARE DIVIDED WHETHER

SOVEREIGN IMMUNITY IS COMPATIBLE

WITH THE TEXTUAL REQUIREMENT OF

JUST COMPENSATION

The sovereign immunity doctrine affirms a principle of state sovereignty inherent in the constitutional

structure: that states, as sovereigns, are 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). For as long as this doctrine has existed, however, this Court has recognized exceptions.

For one, 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. Thus, 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. Second, the “‘plan

of the Convention’ includes certain waivers of

sovereign immunity to which all States implicitly

consented at the founding.” PennEast, 594 U.S. at

500. Finally, states may waive their immunity from

suit by taking voluntary actions inconsistent with a

claim of immunity. Gunter v. Atl. Coast Line R.R. Co.,

200 U.S. 273, 284 (1906) (“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.”).

This Court has also recognized that property owners have an express constitutional right to be provided

compensation when the government takes property,

and to sue to compel payment if the government has

not affirmatively done so. Knick, 588 U.S. at 192

(holding that 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)). The

plain text of the Constitution provides an owner with

a “self-executing” right to seek just compensation

when the government has taken property “without

just compensation.” First English, 482 U.S. at 316 n.9

(noting that 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) (holding that 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, 588 U.S. at 191. These principles—that states cannot avoid providing compensation when taking property, but also enjoy sovereign

immunity from suits where the remedy is money—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[.]”).

This Court ruled early on that states were not

bound by the Fifth Amendment’s “just compensation”

requirement for a taking. See Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 247–51 (1833). But any notion that the sole limitation on the states’ sovereign

power to take property is a state’s own constitution

was forever dispelled by the ratification of the Fourteenth Amendment which “‘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 Constitution.” Alden, 527 U.S. at 756 (citation omitted).6

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. A principal drafter

of the Fourteenth Amendment, Representative John

Bingham, contended that the amendment was necessary to reverse Barron’s holding that states are not

limited by the Fifth Amendment’s Takings Clause.

Cong. Globe, 39th Cong., 1st Sess., 1089-90 (1866); see

also id. at 1090 (“[T]he people are [now] without remedy. . . . [T]he State Legislatures may by direct violations of their duty and oaths avoid the requirements

of the Constitution[.]”).

Twenty five years after the Fourteenth Amendment’s ratification, this Court held that the Due Process Clause selectively incorporated provisions of the

Bill of Rights and limited the sovereignty of the states.

6 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).

Chicago, B. & Q. R. Co., 166 U.S. at 233-34, 239-41.7

The first of these rights so incorporated was the Fifth

Amendment right to just compensation. Ibid. This

Court held that states and their instrumentalities are

bound to provide just compensation when they take

private property. Ibid.; see also 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.”).8 With this extension of the Takings Clause to

the states, “[t]he principles of sovereign immunity and

just compensation [were set] on a collision course.”

See Seamon, supra; see also Berger, supra.

The tension between the states’ sovereign immunity and their obligation to provide just compensation

for a taking has become increasingly important as

states have taken a more active role in the regulation

7 Other Justices since have stated that the Privileges or Immun-

ities Clause, rather than the Due Process Clause, is a better vehicle to incorporate rights against the states. See McDonald v.

City of Chicago, 561 U.S. 742, 805–06 (2010) (Thomas, J., concurring in part and concurring in the judgment) (advocating incorporation via Privileges or Immunities); Timbs v. Indiana, 586

U.S. 146, 157 (2019) (Thomas, J., concurring in the judgment);

ibid. (Gorsuch, J., concurring) (noting that the Privileges or Immunities Clause “may well” be the proper vehicle for incorporation); see also The Slaughter-House Cases, 83 U.S. 36, 96-129

(1873) (Field, J., dissenting, joined by Chase, C.J., Swayne &

Bradley, JJ.) (urging a broad reading of Privileges or Immunities), and Saenz v. Roe, 526 U.S. 489, 522, 527 (1999) (Thomas,

J., dissenting) (calling for reconsideration of Slaughter-House).

8 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).

of private property. In the modern era, 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, 594 U.S. 139 (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 (or even, as here, in

the state’s own courts), states are quick to assert that

sovereign immunity prevents accountability. This

occurs even in cases involving classic unconstitutional takings that should be quickly resolved in favor of an award of compensation.

Some courts accept the sovereign immunity argument. See, e.g., EEE Minerals, LLC v. North Dakota,

81 F.4th 809 (8th Cir. 2023) (sovereign immunity

barred a claim after the state legislatively redefined

private mineral interests as public property); 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, 8

F.4th at 290 (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).

Other courts, however, expressly reject the idea

that sovereign immunity insulates governments from

federal constitutional takings claims. In Fulton v.

Fulton Cnty. Bd. of Comm’rs, 148 F.4th 1224, 1261

(11th Cir. 2025), for example, the court held that

“sovereign immunity can’t undermine a cause of action that the Constitution expressly makes a right.”

(citing PennEast, 594 U.S. at 508). The waiver of sovereign immunity is in the structure of the Constitution. The Eleventh Circuit continued:

That’s why the Supreme Court has been clear

that when “there [is] no remedy by which [a]

plaintiff could have recovered compensation for

[a] taking . . . ,” he may at least sue to recover

his taken property under a “constitutional exception to the doctrine of sovereign immunity

. . .” Malone v. Bowdoin, 369 U.S. 643, 647-48

(1962) (quoting Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682, 696-97 (1949))

(internal quotation marks omitted); see also

First English, 482 U.S. at 316 n.9 (rejecting arguments that “principles of sovereign immunity”

prevent recognition that the Fifth Amendment

is a “remedial provision”); United States v. Lee,

106 U.S. 196, 221 (1882) (asserting if the government can defeat a takings claim by invoking sovereign immunity “it sanctions a tyranny which

has no existence in the monarchies of Europe,

nor in any other government which has a just

claim to well-regulated liberty and the protection of personal rights”).

Id. at 1262. Arkansas has added to this conflict by

concluding that the Commissioner is immune from a

federal constitutional takings claim, even in state

court. But the Eleventh Circuit understood it correctly

when it rejected the conclusion that any part of our

government can claim sovereign immunity from a

duty to provide compensation when that duty is expressly recognized in the Constitution:

Our Founders did not do to us what the Greek

gods did to Tantalus. Our Constitution explicitly

promises exactly two remedies: “just compensation” if the government takes our property, and

the writ of habeas corpus if it tries to take our

lives or liberty. And the Constitution delivers directly on each. It doesn’t taunt us by naming

these remedies but then holding them out of

reach, depending on the whims of the legislature.

So even if Congress doesn’t legislate a procedure

by which a person can obtain one of these remedies, the Constitution’s promise is not illusory. A

person can bring a case directly invoking either

constitutional remedy.

Id. at 1232.

This Court should resolve the conflict to make clear

that no sovereign has immunity from an owner’s claim

that it has taken private property without just compensation.

II.

THE DECISION BELOW CONFLICTS WITH

COMMON-LAW UNDERSTANDINGS,

AND THIS COURT’S PRECEDENT

The Arkansas Supreme Court’s conclusion that the

Commissioner is immune from BAS’s federal claim

that the Commissioner violated the Fifth Amendment

as a result of the tax sale and failure to disgorge BAS’s

equity is incompatible with the conditional nature of

the state’s power to take property, and this Court’s

precedent.

A. 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

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:

“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).

For a more modern example of the longstanding and

traditional common-law approach, see Attorney-General v. De Keyser’s Royal Hotel, Ltd., [1920] AC 508.

There, the House of Lords concluded the hotel was entitled to compensation for the Royal Flying Corps’s use

of the premises during World War I. The Lords rejected the Crown’s claim that the royal prerogative exempted it from providing compensation for the military’s expropriation, use, and occupancy of the hotel,

even though the Crown had wide latitude to take property and determine how much property was necessary

for the defense of the realm. As Lord Moulton noted,

the Crown “has unrestricted power of selection of the

necessary lands, buildings, etc., to be taken. It contemplates in the first instance voluntary purchase,

but, if that cannot be arranged, then the lands, etc.,

may be acquired compulsorily subject to certain certificates being obtained as to the necessity or expediency

of the acquisition or in the case of actual invasion. I

am satisfied that it enables the Crown to acquire either the property or the possession or use of it as it

may be need.” Id. at 550-51. But that in no way limited the owner’s right to pursue compensation in the

courts. As Lord Moulton wrote, “In all cases compensation is to be paid by the Crown, the amount to be

settled by a jury.” Id. at 551. The requirement to provide compensation “is a consequence of the taking, but

in no way restricts it[.]” Ibid.

By the time of the American founding, it was firmly

established that the sovereign power of eminent domain was connected to the duty to pay just compensation to affected property owners. Such 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.”).

Early courts and commentators considered the act

of taking property to include an implied promise and

agreement on the part of the government to compensate the owner. Great Falls Mfg. Co., 112 U.S. at 656

(“The law will imply a 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[.]”);

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[.]”); To be sure, 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

promise to make the required compensation, where

property, to which the government asserts no title, is

taken[.]”); Yearsley, 309 U.S. at 21 (“[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[.]”). 9

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

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

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 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. at 494.

The Arkansas Supreme Court’s conclusion that the

Commissioner is immune from a federal claim for just

compensation simply cannot be reconciled with these

founding-era understandings about the conditional

nature of the power to take property. Cf. Howell v.

Miller, 91 F. 129, 136 (6th Cir. 1898) (“A state cannot

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[.]”).

authorize its agents to violate a citizen’s right of property, and then invoke the constitution of the United

States to protect those agents against suit instituted

by the owner for the protection of his rights against

injury by such agents.”). 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. Ct. Err.

1823) (“This equitable and constitutional title to compensation, undoubtedly, imposes it as an absolute

duty upon 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, 594

U.S. at 500.

B. The decision below conflicts with this

Court’s Just Compensation 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, 588

U.S. at 192 (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 191-94. This

Court’s precedents hold that, of its own force, the Fifth

Amendment provides property owners with an actionable compensation remedy for a taking in federal

court, whether that taking is caused by a state or its

subdivisions. Knick, 588 U.S. at 193 (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, and confirm that a state cannot assert it

is immune from the requirements of the Just Compensation Clause.

Moreover, 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 stressed that the “prohibitions of the [Fourteenth] amendment refer to all the instrumentalities

of the state,—to its legislative, executive, and judicial

authorities,—and therefore whoever, by virtue of public position under a state government, deprives another of any right protected by that amendment

against deprivation by the state, ‘violates the constitutional inhibition.’” 166 U.S. at 233-34 (citation

omitted). Turning to the question of a state’s due process-based duty to abide by the Fifth Amendment, the

Court stated “it must be that the requirement of due

process of law in that [Fourteenth] amendment is applicable to the direct appropriation by the state to public use, and without compensation, of the private property of the citizen.” Id. at 236. The Chicago, B. & Q.R.

Co. Court therefore held that

a judgment of a state court, even if it be authorized by statute, whereby private property is

taken for the state or under its direction for public use, without compensation made or secured to

the owner, is, upon principle and authority,

wanting in the due process of law required by the

fourteenth amendment of the constitution of the

United States, and the affirmance of such judgment by the highest court of the state is a denial

by that state of a right secured to the owner by

that instrument.

Id. at 241. Chicago, B. & Q.R. Co. thus recognized

that, upon adoption of the Due Process Clause, the

states’ power to take property became subject to the

same compensatory condition and duty that animates

the Fifth Amendment.

The Arkansas Supreme Court’s conclusion that sovereign immunity bars a claim seeking relief from an

uncompensated taking conflicts with this Court’s conclusion in Chicago, B. & Q.R. Co. that a state’s refusal

to compensate is actionable. See Chicago, B. & Q.R.

Co., 166 U.S. at 236; Vill. of Norwood v. Baker, 172

U.S. 269, 277 (1898) (“[T]he due process of law prescribed by that amendment requires compensation to

be made or secured to the owner when private property is taken by a state, or under its authority, for public use.”) (emphasis added); see also Nichols, The

Power of Eminent Domain § 259, at 302 (“[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.”).

In First English, this Court appeared to agree that

the states’ constitutional duty to provide just compensation negates sovereign 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. 85-1199, 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 sovereign immunity as a bar to just compensation claims.

See also City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, 714 (1999) (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”).

This Court has also regularly resolved takings

claims against states without concern for sovereign

immunity barriers. 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. 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”). 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 Arkansas Supreme Court’s conclusion

that sovereign immunity prevents the court from adjudicating BAS’s federal takings claim cannot be

squared with this Court’s Takings Clause precedents.

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[.]”).

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

JOSEPH R. FALASCO

Quattlebaum, Grooms &

Tull PLLC

111 Center Street

Suite 1900

Little Rock, AR 72201

ROBERT H. THOMAS

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

(916) 419-7111

RThomas@pacificlegal.org

AARON NEWELL

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

Counsel for Petitioner

F EBRUARY 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.