UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                  __________________________________

                             No. 99-31325
                          Summary Calendar

                 ___________________________________

         NORTHWEST LOUISIANA FISH & GAME PRESERVE COMMISSION,

                         Plaintiff-Appellant,

                                  v.

                    RED RIVER WATERWAY COMMISSION,

                         Defendant-Appellee.

                    _____________________________


             Appeal from the United States District Court
                 for the Western District of Louisiana

                            No. 97-CV-1984
                 ____________________________________
                             June 6, 2000

Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:*

     This case comes before us on appeal from the district

court’s grant of summary judgment for defendant Red River

Waterway Commission (“RRWC”) on plaintiff Northwest Louisiana

Fish & Game Preserve Commission’s (“NLF&GPC”) inverse

condemnation claim.    Since we agree with the district court’s

     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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determination that RRWC established that it was entitled to

judgment as a matter of law and that NLF&GPC failed to establish

that there existed a genuine material issue of fact for trial, we

AFFIRM.

                                  I.

     This case arose from an engineering project aimed at

reducing flooding and accommodating navigation along the Red

River basin.   The United States Army Corp of Engineers

constructed a series of five locks and dams along the Red River.

The RRWC was established by the Louisiana legislature to aid in

the project.   According to its legislative charter, the RRWC was

empowered “to establish, operate, and maintain the waterway,” and

to acquire the property rights necessary to complete that task.

Despite this broad charter language, the RRWC’s participation in

the project has been limited to the acquisition of property

rights, and it does not appear that broader participation was

ever actually contemplated.

     The original design for the project established the water

level in pool three at 85 feet.    In January of 1995, the level in

the pool was raised to 95 feet.    Prior to that time, either the

RRWC or the Corp of Engineers had acquired most of the property

rights to accommodate the rise in water level, except no

agreement had been reached for the acquisition property owned by

NWF&GPC.



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     The NWF&GPC filed suit in state court against the RRWC

claiming that the Commission was responsible for raising the

water level in the pool and causing damage to NWF&GPC’s land

bordering the pool.   Thus began the tortured procedural history

of this case.    The defendant answered, filed a third-party demand

against the United States through the Army Corp of Engineers, and

removed the case to federal court.    The case was remanded to

state court for failure to show any basis for federal subject

matter jurisdiction, only to be removed again, this time by the

United States.    See 28 U.S.C. § 2679(d) (2) (1994).   The

presiding judge denied plaintiff’s second motion for remand of

the entire case and its alternative motion to sever and remand

the principal demand.   This determination was based on the

judge’s conclusion that the principal demand against RRWC and the

third-party demand were not “separate and independent” claims.

The judge similarly rejected plaintiff’s contentions that the

case could not be heard in federal court because the defendant

was vested with immunity under the Eleventh Amendment. Plaintiff

sought certification for interlocutory appeal, which the district

court denied.    Plaintiff then filed a writ of mandamus, which we

denied.

     Finally, more than two and one half years after the initial

suit was filed, defendant moved for summary judgment.    After

concluding that the defendant was entitled to judgment as a



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matter of law and that no genuine issues of fact existed, the

court granted summary judgment in favor of defendant.       Plaintiff

appealed, and now challenges (1) the grant of summary judgment,

(2) the trial court’s rejection of plaintiff’s attempt to compel

remand by invoking the Eleventh Amendment, and (3) the court’s

refusal to sever and remand the principal demand to state court.

                                II.

     Plaintiff appeals the district court’s grant of summary

judgment for the defendant; we review a district court’s grant of

summary judgment de novo.   See Matsushita Elec. Industrial Co. v.

Zenith Radio Corp., 

, 587 (1986); Todd v. AIG Life

Ins. Co., 

, 1451 (5th Cir. 1995).   Summary judgment

is appropriate if the record discloses “that there is no genuine

issue as to any material fact and moving party is entitled to a

judgment as a matter of law.”   FED. R. CIV. P. 56 (c).    In making

this determination, we must evaluate the facts in the light most

favorable to the non-moving party.    See 

; 

.

     Plaintiff appeals the district court’s determination that

this suit was not barred by the Eleventh Amendment.       We review

Eleventh Amendment immunity determinations, like other questions

of subject matter jurisdiction, de novo as a question of law.

United States v. Texas Tech Univ., 

, 288 (5th Cir.

1999).


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     Finally, Plaintiff appeals the district court’s denial of

its motion to sever and remand.    A trial court has broad

discretion to sever and remand, we review only for abuse of that

discretion.     See Brunet v. United Gas Pipeline Co., 

,

505 (5th Cir. 1994).

                                 III.

                                  A.

     The district court’s summary judgment order details all of

the relevant summary judgment proof adduced by the parties.

Through its submissions, including federal and state legislative

materials concerning the Red River project and other similar

undertakings, Defendant established that its role in the project

was limited to the acquisition of property rights.    Operational

control over the project was exercised solely by the Corp of

Engineers.    The Project Management Plan and affidavit evidence

from the Executive Director of the RRWC further clarifies that

any operational decision, such as the decision to raise the water

level in pool three, could only have been undertaken by the Corp

of Engineers, not the RRWC.

          Plaintiff’s submissions included ten letters containing

correspondence between the Corp of Engineers, the Louisiana

Department of Wildlife and Fisheries, and the RRWC.    The court’s

summary judgment order addressed each piece of evidence

individually.    Ultimately, the court concluded that none of the


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letters established a fact question as to the operational

authority to raise the water level in pool three.    The plaintiff

also submitted two reports concerning the project.   Of the two,

only one was deemed relevant to the case, and it only served to

buttress defendant’s case.

     The district court determined that RRWC’s role was limited,

and did not extend to operational control of the project.    The

RRWC did not cause the damage to Plaintiff’s property, and

therefore, Plaintiff cannot recover under Louisiana’s law of

inverse condemnation.   We AFFIRM the district court’s grant of

summary judgment.

                                B.

     Plaintiff’s argument that the Eleventh Amendment bars this

suit from federal court can be quickly dispatched.   The criteria

by which we determine whether an entity is an arm of the state

entitled to Eleventh Amendment immunity were set forth in Clark

v. Tarrant County, Texas, 

, 744-45 (5th Cir. 1986)

and United Carolina Bank v. Board of Regents, 

(5th

Cir. 1982).   The six factors that guide our determination are as

follows:

     (1) whether the state statutes and case law
     characterize the agency as an arm of the state;
     (2) the source of the funds for the entity;
     (3) the degree of local autonomy the entity enjoys;
     (4) whether the entity is concerned primarily with
     local, as opposed to state-wide problems;
     (5) whether the entity has authority to sue and be sued

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     in its own name;   [and]
     (6) whether the entity has the right to hold and use
     property.

Richardson v. Southern University, 

, 452 (5th Cir.

1997).   In its single appellate brief, Plaintiff fails to address

any of these factors.   Conversely, Defendant conclusively

establishes that all six factors counsel against a determination

that RRWC is an arm of the State of Louisiana.   We conclude that

the district court did not err when it rejected Plaintiff’s

attempt to invoke the Eleventh Amendment on Defendant’s behalf.

                                C.

     The district court refused to sever and remand the principal

demand because the third-party demand was not a separate and

independent claim.   The court reasoned that since the “third-

party complaint seeks indemnity based on allegations that the

third-party’s negligence caused the plaintiff’s damage, the claim

is not separate and independent” citing American Fire & Casualty

Co. v. Finn, 

, 14 (1951).   The court went on to note

that even if the third-party demand were a separate and

independent claim, judicial economy and fairness would be best

served by keeping the entire action in federal court.

     The statutory authority to sever and remand is set forth at

28 U.S.C. § 1441(c):

     Whenever a separate and independent claim or cause of
     action within the jurisdiction conferred by section
     1331 of this title is joined with one or more otherwise

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     non-removable claims or causes of action, the entire
     case may be removed and the district court may
     determine all issues therein, or, in its discretion,
     may remand all matters in which State law predominates.

28 U.S.C. § 1441(c)(1994).

     Plaintiff asserts simply that “[t]here is clear and

pervasive authority which supports a sever and remand.”    However,

the cases Plaintiff cites are not solidly on point, and Plaintiff

fails to set forth how any factual distinction can be made

between the principal and the third-party demand.   Accordingly,

we conclude that the third-party demand against the United States

was not a separate and independent claim or cause of action.   The

district court correctly recognized that it was without

discretion to sever and remand under § 1441(c).

                               IV.

     For the reasons set forth above, we AFFIRM.




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