Opinion
Cause No. NA01-0140-C-B/G.
August 24, 2001
James N Williams, Middleton Reutlinger, Louisville, KY.
James W Clark, Baker Daniels, Indianapolis, IN.
Timothy J Junk, Office of the Attorney General, Indianapolis, IN.
Thomas H Stewart, Blank, Rome, Comisky McCauley, Cincinnati, OH.
ENTRY GRANTING MOTION TO DISMISS AS TO INDIANA DEPARTMENT OF TRANSPORTATION
I. Introduction.
This is a declaratory judgment action brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9604 and 9606 ("CERCLA") and 28 U.S.C. § 2207. The plaintiff, Louisville Public Warehouse (hereafter "LPW"), alleges that the State of Indiana Department of Transportation (hereafter "INDOT") unlawfully seeks to assess against plaintiff the costs of the clean-up of hazardous environmental substances on a site that LPW owned and that INDOT took by eminent domain. LPW seeks a judgment declaring that, if it is liable at all for clean-up costs, it is only partially liable because it is only one of several prior owners of the affected property and the other prior owners are also responsible. It also alleges that INDOT itself is responsible for some of the dumping of hazardous materials.
This case is before the Court on INDOT's motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, on the ground that, as an agency of the State of Indiana, it is immune from liability pursuant to the Eleventh Amendment. For the following reasons, we hold that INDOT is indeed immune from liability. We also hold that the State has not waived its immunity so as to make itself amenable to suit in federal court. And we note that, based on the complaint before us, the Ex Parte Young exception to sovereign immunity does not apply. Accordingly, this action is subject to dismissal against INDOT for lack of subject matter jurisdiction.
This decision applies only to INDOT, which is the only defendant that has moved to dismiss this cause of action.
II. Analysis.
A. INDOT's Sovereign Immunity
INDOT is an agency of the State of Indiana. In fact, it is the State of Indiana for purposes of a lawsuit in federal court. Kroll v. Bd. of Trustees of Univ. of Ill., 934 F.2d 904, 907 (7th Cir.), cert. denied, 502 U.S. 941, 112 S.Ct. 377, 116 L.Ed.2d 329 (1991). Accordingly, the law governing the States' Eleventh Amendment sovereign immunity applies here. If Indiana is immune from suit in federal court, then INDOT's motion to dismiss must be granted pursuant to Rule 12(b)(1). We conclude that Indiana is immune from a federal court lawsuit that arises under CERCLA.
"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." U.S. Const. amend. XI.
The road to this conclusion is somewhat circuitous. In Pennsylvania v. Union Gas Company, 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), the Supreme Court expressly held that Congress intended CERCLA to abrogate the States' Eleventh Amendment immunity and did so by its power under the Commerce Clause. Under the Union Gas regime, the States were not immune from CERCLA suits in federal courts. But seven years later the Court expressly overruled Union Gas in Seminole Tribe v. Florida, 517 U.S. 44, 66, 116 S.Ct. 1114, 1128, 134 L.Ed.2d 252 (1996), where it held that Congress cannot constitutionally abrogate the States' sovereign immunity pursuant to its powers under the Commerce Clause.
There is no question that Congress passed CERCLA pursuant to its authority under the Commerce Clause. Union Gas, 491 U.S. at 13-14, 109 S.Ct. at 2281. It follows from Seminole Tribe that, even if Congress expressly intended to abrogate the States' sovereign immunity with CERCLA (which it did), it did not have constitutional authority to accomplish that end. See Burnette v. Carothers, 192 F.3d 52, 58-59 (2d Cir. 1999). Also see Ninth Avenue Remedial Group v. Allis-Chalmers Corp., 962 F. Supp. 131, 135 (N.D.Ind. 1997) (since Congress did not have power to abrogate states' immunity under Commerce Clause, unconsenting states are not liable to private parties under CERCLA).
Thus, unless some exception to sovereign immunity applies here, INDOT is immune from LPW's suit in federal court and this case must be dismissed as to INDOT for want of subject matter jurisdiction.
There are three exceptions to the States' Eleventh Amendment immunity:
First, suits against state officials seeking prospective equitable relief for ongoing violations of federal law are not barred by the Eleventh Amendment under the Ex parte Young doctrine. See Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Second, individuals may sue a state directly if Congress has abrogated the state's immunity from suit through an unequivocal expression of its intent to do so and pursuant to a valid exercise of its power. See Seminole Tribe of Florida v. Florida, 517 U.S. [44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252] (1996). Finally, individuals may avail themselves of suits against a state that has properly waived its sovereign immunity and consented to suit in federal court. See id. at [54- 55, 116 S.Ct. 1114]; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).Darne v. State of Wisconsin, Dept. of Revenue, 137 F.3d 484, 487-88 (7th Cir. 1998). See Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997). For the reasons already discussed, the second exception-Congress's abrogation of the States' sovereign immunity -is inapplicable here. What of the other two?
B. Exceptions to Eleventh Amendment Immunity.
1. Waiver of Sovereign Immunity.
LPW argues that INDOT waived its immunity defense by threatening to sue it pursuant to CERCLA. A State may waive its immunity defense either directly or constructively. In either case, it must be by clear and unmistakable language. The Supreme Court observed in Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), that a court will find a waiver of Eleventh Amendment immunity only when the waiver is stated "by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 240, 105 S.Ct. 3142, 3146- 47, 87 L.Ed.2d 171 (1985). As to express waiver, we agree with Judge Lozano's view in Ninth Avenue Remedial Group, 962 F. Supp. at 135-136: "Nothing in Indiana Code 13-25-4-10 indicates a willingness on the part of the State to be sued in federal court in any CERCLA case. The statute's language does not meet the express language requirement for such a broad waiver."
But, says LPW, INDOT has constructively waived its immunity defense by taking legal action pursuant to CERCLA. It is true that a state may waive its immunity to federal suit by taking certain kinds of legal action. But as the Seventh Circuit noted in MCI Telecommunications v. Illinois Bell Telephone Company, 222 F.3d 323, 338 (7th Cir. 2000), cert. denied, Public Service Com'n of Wis. v. Wisconsin Bell, Inc., 121 S.Ct. 896, 148 L.Ed.2d 802 (2001):
We may find that a state has waived its immunity when "the State voluntarily invokes" federal jurisdiction or when "the State makes a `clear declaration' that it intends to submit itself" to federal jurisdiction. In either case, there must be an "unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment." [Internal citations omitted.]Also see Ninth Avenue Remedial Group, 962 F. Supp. at 133.
INDOT has sued LPW in an Indiana state court. Doing so could not raise an "unequivocal indication" that INDOT was consenting to federal jurisdiction. Moreover, INDOT's complaint alleges violations of state law. Since CERCLA does not preempt state environmental laws, there is no reason to infer from INDOT's complaint allegations that it is consenting to federal jurisdiction. Nor is it alleged that INDOT has voluntarily participated in a federal program on condition that it waive its sovereign immunity. See Indiana Bell Telephone Co. v. McCarty, 30 F. Supp.2d 1100,1105 (S.D.Ind. 1998) ("a state may constructively waive its immunity by voluntarily participating in federal programs when Congress expresses `a clear intent to condition participation in the programs. . . on a State's consent to waive its constitutional immunity.'") Similarly, even where a state waives immunity with respect to actions in its own courts, that waiver is insufficient to establish a waiver as to suits in federal court. Atascadero, 473 U.S. at 241, 105 S.Ct. at 3146. In conclusion, INDOT's suing LPW in a state court under state law does not amount to a constructive abrogation of its sovereign immunity as to suits in federal court.
LPW appended INDOT's complaint as an exhibit to its opposition brief. INDOT's lawsuit against LPW was filed in Clark County Circuit Court; it expressly alleges violations of Indiana law. We may take notice of this document outside the pleadings to resolve a factual matter pertaining to subject matter jurisdiction. English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993); Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993).
CERCLA itself expressly repudiates any intent to preempt state actions. 42 U.S.C. § 9614(a) ("Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances. . ."); 42 U.S.C. § 9672 ("Nothing in this subchapter shall be construed to affect either the tort law or the law governing the interpretation of insurance contracts of any State."). Also see In re Chicago, Milwaukee, St. Paul Pacific R.R. Co. v. Union Pacific R.R., 78 F.3d 285, 289 (7th Cir. 1996) (CERCLA does not preempt state law actions), cert. denied, CMC Heartland Partners v. Union Pacific R. Co., 519 U.S. 1090, 117 S.Ct. 763, 136 L.Ed.2d 710 (1997).
2. The Ex Parte Young Exception to Sovereign Immunity.
LPW argues that INDOT is subject to the Ex Parte Young exception to sovereign immunity, and therefore may be sued for declaratory relief, because it is an owner of the property at issue and is participating in an ongoing violation of federal law. In MCI Telecommunications, the Seventh Circuit outlined the Ex Parte Young exception to sovereign immunity:
LPW appears to argue that a federal court has jurisdiction over this matter because it is suing only for prospective declaratory relief and not monetary damages. Pl. Brief, p. 6. This argument is mistaken. Neither Fed.R.Civ.P. 57 nor 28 U.S.C. § 2207 can create federal jurisdiction where it does not otherwise exist. Skelly Oil Co. v. Philips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950); Ameritech Benefit Plan Committee v. Communications Workers of America, 220 F.3d 814, 818 (7th Cir. 2000) (Declaratory Judgment Act "is not an independent source of subject matter jurisdiction.").
Under the Ex parte Young doctrine, a private party may sue individual state officials in federal court to obtain prospective relief for an ongoing violation of federal law. See Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441; Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 294, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (O'Connor, J., concurring); id. at 298-99, 117 S.Ct. 2028 (Souter, J., dissenting) ("The plaintiff must allege that the officers are acting in violation of federal law, and must seek prospective relief to address an ongoing violation, not compensation or other retrospective relief for violations past." (internal citation and footnote omitted)); Marie O., 131 F.3d at 615. Under this doctrine, federal courts are enabled to "vindicate federal rights and hold state officials responsible to `the supreme authority of the United States.'" Pennhurst II, 465 U.S. at 105, 104 S.Ct. 900 (quoting Ex parte Young, 209 U.S. at 160, 28 S.Ct. 441).222 F.3d at 335. See Alden v. Maine, 527 U.S. 706, 748, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).
The Ex Parte Young exception applies only to "individual state officials" and not to the State or its agencies (and even where state officials are named, the doctrine is not unlimited). Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 269-270, 117 S.Ct. 2028, 2034-2035,138 L.Ed.2d 438 (1997); MCI Telecommunications, 222 F.3d at 336-337; Ryan v. Illinois Department of Children and Family Services, 185 F.3d 751, 758 (7th Cir. 1999). Here, however, LPW has not sued any individual official in either an individual or official capacity. This is not merely a technical pleading deficiency. In addition to not naming any state or INDOT official as a defendant, no allegation in the complaint can reasonably be construed as an allegation that any official has violated federal law or continues to violate federal law; nor does the complaint ask for any relief with respect to any official.
Instead, all of the allegations concerning INDOT refer to the agency itself. For example:
LPW is informed and believes and alleges thereon that in the course of its ownership, INDOT leaked, discharged, handled, and/or otherwise released hazardous materials, including but not limited to pentachlorophenol, heptachlor, endosulfans, chlorianes, a-BHC hexachlor, b-BHC hexachlor, d-BHC hexachlor, and g-BHC Lindane onto and into the soil, subsoil, surface water and groundwater at and in the vicinity of the Property. Complaint ¶ 29.
INDOT had the duty to exercise reasonable care to use, dispose of and release hazardous chemicals in such a manner as to prevent chemical contamination from occurring at the Property and not to cause LPW to sustain damages or losses of any nature or kind. Complaint ¶ 56.
INDOT breached its duty to LPW by failing to exercise reasonable care in the conduct of their ownership or operation of the Property. LPW is informed and believes and thereon alleges that the INDOT, while constructing the I-65 road improvements allowed hazardous chemicals to be releases [sic] onto and into the soils and groundwaters at the Property and in the vicinity of the Property. Complaint ¶ 57.
None of these allegations may properly be construed as allegations of wrongdoing against individual officials. Accordingly, based on the complaint, no Ex Parte Young argument is properly before us and we find no exception to INDOT's assertion of sovereign immunity. We express no opinion as to the potential merits of a properly presented Ex Parte Young argument.
IV. Conclusion
LPW's complaint against INDOT is barred by Indiana's Eleventh Amendment immunity. We find that INDOT did not waive the State's immunity either expressly or constructively and that no exception to sovereign immunity applies here. Accordingly, LPW's complaint as to INDOT is DISMISSED for want of subject matter jurisdiction.
It is so ORDERED this day of August 2001.
SARAH EVANS BARKER, United States District Court Judge
District of Indiana Copy to:
James N Williams, Middleton Reutlinger, Louisville, KY.
James W Clark, Baker Daniels, Indianapolis, IN.
Timothy J Junk, Office of the Attorney General, Indianapolis, IN.
Thomas H Stewart, Blank, Rome, Comisky McCauley, Cincinnati, OH.