TAKING FROM STATES: SOVEREIGN IMMUNITY'S PRECLUSIVE EFFECT ON PRIVATE TAKINGS OF STATE LAND.

• Author: Danis, Jennifer

INTRODUCTION 61 I. BACKGROUND LAW 64 A. Eminent Domain in the United States 64 1. The Original Understanding of American Eminent Domain 64 2. Delegated Eminent Domain Power 71 B. State Sovereign Immunity 74 1. History and Application of the Eleventh Amendment 74 2. Permissible Suits against States by Private Parties 79 a. Eleventh Amendment Exceptions 79 b. The Clear Statement Canon of Federalism 82 II. COURTS GRAPPLE WITH THE COLLISION 85 A. Natural Gas Act 86 1. In re PennEast Pipeline Company 90 2. Sabine Line v. A Permanent Easement of 4.25 +/- Acres of Land in Orange County, Tex 93 3. Columbia Gas Transmission, LLC v. .12 Acres of Land, More or Less, in Washington County, Maryland 94 B. Federal Power Act 95 C. Inverse Condemnation & Regulatory Takings 98 III. SOVEREIGN IMMUNITY PRECLUDES PRIVATE TAKINGS OF STATE LANDS USING DELEGATED EMINENT DOMAIN POWERS 100 A. Impermissible Intrusions on the Core of State Sovereignty 102 B. Void Abrogations 105 C. End Runs Around Sovereign Immunity 106 1. Takings as a Self-Executing Abrogation or Waiver of Sovereign Immunity 107 2. Delegation as an End Run Around Sovereign Immunity 109 3. Party in Interest & Standing in the Shoes of the Sovereign 111 a. Bankruptcy's Abrogation of State Sovereign Immunity 112 b. Qui Tam Actions as Analogs 114 CONCLUSION 117 INTRODUCTION

Delegation is all around us. Congressional delegations of legislative power comprise the backbone of the American administrative state. Setting aside scholarly support of--or derision for--their magnitude and scope, delegations are essential for modern government. Congress typically delegates its powers to federal executive agencies, but also maintains the power to delegate the federal government's power to private actors. Yet such transfers of power are not unfettered, nor should they be. They are carefully circumscribed by countless judicial doctrines that both define and limit their sweep: clear statement, intelligible principle, and nondelegation provide some of the principal limits. State sovereign immunity also limits these powers when private actors are the recipients of great federal powers.

State sovereign immunity prevents unconsenting states from being sued by private actors absent limited circumstances. Sovereign immunity is not just a shield states may raise as a defense to liability. Rather, it precludes suits against states altogether unless a state surrenders its immunity, (1) such as through waiver, forfeiture, (2) or Congressional abrogation. And current doctrine severely curtails when Congress may abrogate a state's sovereign immunity, largely limiting it to Congressional powers under Section 5 of the Fourteenth Amendment. understood in context, state sovereign immunity operates outside of other constitutional provisions and the Bill of Rights. (3)

It is an understatement to say that modern bureaucratic governance has expanded beyond what the founders ever imagined, and courts must now harmonize increasingly colliding constitutional provisions. This Article argues that the text, structure, history, and background of federal eminent domain power, as limited by the Fifth Amendment's Takings Clause, and state sovereign immunity are properly read separately, and where the provisions collide because a private party attempts to take land from a sovereign state, courts should give full force and effect to both provisions. State lands are within the core of sovereign immunity. Further, Congress lacks the power to abrogate state sovereign immunity using its enumerated Article I powers. Thus, in the context of eminent domain provisions, when Congress has delegated its takings power to private actors, state sovereign immunity constrains the ability of delegees to take states' property without their consent.

Today, litigants who seek redress from governments have relatively few options. Sovereign immunity has reached new heights such that the Court's aspiration in Marbury v. Madison, that there be a right for every remedy, has become more of a whisper, if it ever was a true accounting. Official immunity in tort against federal government officers overwhelmingly leaves litigants with no legal remedy; the combination of constitutional standing requirements, heightened pleading standards and lack of respondeat superior liability frequently prevents plaintiffs from any legal recourse at all.

The background and history of eminent domain is distinct but intertwined with the evolving concept of state sovereign immunity. (4) At least partially instantiated by the Eleventh Amendment, state sovereign immunity existed prior to the ratification of the Constitution and Bill of Rights. (5) Although intertwined, the separate and distinct history and evolution of each doctrine confirms that where they collide, state sovereign immunity does not yield to eminent domain power. This Article argues that under current state sovereign immunity doctrine, within the limited instances in which Congress has delegated its eminent domain power to a private actor for a specified public use and just compensation, the private actor is nonetheless prohibited from wielding that power to take state lands absent state consent. Further, without fully reconceiving the existing scope of states' sovereign immunity, Congress is unable to delegate its abrogation power when its legislation is rooted in the Commerce Clause and other Article I powers. While billions of dollars are at stake between infrastructure initiatives and state public lands, the scope of the article is primarily doctrinal--examining the balance of power between corporate interests and state dominion. This Article does not advocate for the economic benefits of eminent domain or the theoretical justifications of sovereign immunity, only that they must be analyzed independently when the doctrines collide. In Part II, we briefly describe the erratic legal history and doctrine of state sovereign immunity and federal eminent domain powers. There, we show how each power evolved separately. In Part III, we outline the limited caselaw confronting the problem of reconciling these two fundamental aspects of sovereignty. Collisions have arisen when private parties exercise eminent domain power under the Natural Gas Act and inverse condemnation suits, where a private party seeks to sue a government for just compensation after the government has taken land, and could arise under the Federal Power Act. In Part IV, this Article examines how state sovereign immunity and federal eminent domain collide, and how these independent doctrines should be understood when they are in tension from Congressional delegation of federal eminent domain authority to private actors. Finally, we conclude with a brief description of the potential effects of resolving this tension and a normative assessment of how laws where federal eminent domain power is delegated to a private party should function.

1. BACKGROUND LAW

   1. Eminent Domain in the United States

1. The Original Understanding of American Eminent Domain

   Eminent domain is the power of the sovereign to take property for its own use. (6) Paradigmatically, this practice involves the government seizing private property, and is a power many consider an inherent attribute of sovereignty. (7) Under English common law, "land was owned by right of the king and that individual ownership was merely a holding of the king in return for the performance of duties and governmental functions." (8) Eminent domain was well established in the American colonies by the time of independence, (9) and was understood to emanate to the sovereign from natural law. (10) After independence, when each colony became a sovereign state, the thirteen new states gained all the attributes inherent in sovereignty. (11) By nature of that sovereignty, each state assumed control over the people and property within its jurisdiction which had previously belonged to the king. (12) That included each state's right of eminent domain. Much of this natural law understanding of eminent domain was then constitutionalized. (13) Eminent domain also flowed to the federal government as its own sovereign, although in the early republic, there was some doubt whether the federal government possessed eminent domain power because it had not been specifically enumerated in the Constitution. (14) Now this power is limited by the Fifth Amendment's Takings Clause, which serves as a restriction on the federal government. (15) The remainder of this Subpart traces recent historiography about the federal government's eminent domain power between the founding and present day, and concludes with the current legal framework by which courts consider delegations of federal eminent domain powers to private parties. (16)

   There has been renewed academic debate about why the federal government did not directly exercise federal eminent domain power until after the 1860s and 1870s, but it is nonetheless clear that in the period immediately following ratification, "the exercise of federal eminent domain power within state borders occurred generally in state proceedings and always with state legislative involvement...." (17) There are four potential explanations given now for why the federal government failed to exercise eminent domain prior to the 1870s: (1) the federal government did not have the power to engage in such takings; (2) the monetary cost associated with federal takings was too high; (3) the Enclave Clause required that the federal government obtain consent prior to exercising eminent domain power; or (4) the political cost of federal takings was too high. (18) The following briefly recounts some of the possible original understandings of federal eminent domain power, which will be instructive in understanding how the founders may have understood the interaction between eminent domain and sovereign immunity.

   The first explanation of why the federal government did not use eminent domain power in...