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Union Pacific Railroad lost an unconstitutional taking claim against the State of Louisiana last week in the Fifth Circuit Court of Appeals. Louisiana prevailed in this railroad crossing case with the reliable state standby, Eleventh Amendment immunity.
In 2008, the Louisiana Legislature passed a law requiring that all railroad companies obtain permission from the Louisiana Public Service Commission (LPSC) before closing or removing private railroad crossings. The law mandated that railroad companies file a written request to the LPSC, and the owners of record of the private crossing, detailing the manner in which the crossing unreasonably burdens or substantially interferes with rail transportation.
Union Pacific sued the LPSC, and its commissioners in their official capacity, seeking a declaration that the requirement was preempted by federal law, and constituted an unconstitutional taking.
Union Pacific subsequently amended its complaint to add the State of Louisiana as a defendant. The State won summary judgment, but did not assert an Eleventh Amendment immunity defense.
Union Pacific filed a notice of appeal, appealing only the district court's ruling that crossing removal law does not authorize an unconstitutional taking in violation of the Louisiana Constitution. Specifically, Union Pacific argued that railroad crossing removal law took property without a public purpose because it interfered with the fundamental property right of exclusion.
In response, the State of Louisiana, for the first time on appeal, asserted Eleventh Amendment immunity, and argued that the action should be dismissed for lack of subject matter jurisdiction.
The Fifth Circuit Court of Appeals agreed, finding that Louisiana did not unequivocally waive its immunity when it litigated the case on the merits in the district court. Here, the court found that there was never a voluntary invocation of or unequivocal submission to federal jurisdiction; while Louisiana may have defended itself on the merits against Union Pacific's claims, it never chose to litigate this suit in a federal forum.
What do you think? Is the Fifth Circuit Court of Appeals letting Louisiana have it both ways by allowing the State to argue the case and assert Eleventh Amendment immunity?