Case: 14-30872      Document: 00513125422         Page: 1    Date Filed: 07/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 14-30872                                July 22, 2015
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
RICHARD SHANE RUSH; BETTY H. RUSH; COMITE DIRT PIT,
INCORPORATED,

              Plaintiffs - Appellants

v.

ROBERT J. BARHAM,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-723


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants appeal the dismissal of their 42 U.S.C. § 1983
claims against the Secretary of the Louisiana Department of Wildlife and
Fisheries. The district court dismissed all claims for lack of subject matter
jurisdiction. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                 I. Factual and Procedural Background
      Plaintiffs Richard and Betty Rush are the owners of Comite Dirt Pit, Inc.
(“CDP”). CDP owns a tract of land along the bank of the Comite River in East
Baton Rouge Parish, Louisiana. CDP has farmed, logged and dirt-mined the
property since at least 1983. Beginning more recently, CDP has charged a fee
for recreational ATV access to the Comite River and dirt mounds on the
property.
      Defendant Robert Barham is Secretary of the Louisiana Department of
Wildlife and Fisheries (“LDWF”). One of the statutes enforced by LDWF is the
Louisiana Scenic Rivers Act (“LSRA”). La. Rev. Stat. 56:1843. The LSRA
contains restrictions and permitting requirements applicable to the rivers
specified in the Act. See generally La. Rev. Stat. 56:1840, et seq. The Comite
River is designated a scenic river by the LSRA. La. Rev. Stat. 56:1847(8).
Beginning in 2009, LDWF served multiple orders and citations on CDP and/or
its owners, determining that mining and logging on the property within 100
feet of the Comite River without a permit violated the LSRA and ordering that
such activities cease. On June 19, 2009, LDWF filed an action for injunctive
and declaratory relief in state court against CDP based on alleged continuing
violations of the LSRA. The state court issued a temporary restraining order
(“TRO”) restraining CDP from mining activities or removing trees in the areas
in question. On July 1, 2009, CDP and LDWF voluntarily entered into an order
specifying that the terms of the TRO were “continued indefinitely by both
parties.” In March 2010, LDWF instituted additional proceedings in the state
court against CDP based on alleged violations of the 2009 order. Subsequently,
in lieu of conducting a hearing, the parties again voluntarily agreed that the
terms of the TRO and the 2009 order were “continued indefinitely by both
parties.”


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      In July 2013, the Plaintiffs sought to set aside both the 2009 and 2010
state court orders, to which they had previously consented. According to the
Plaintiffs’ complaint, this matter remains pending in the state court.           In
November 2013, the Plaintiffs filed the instant lawsuit in the Middle District
of Louisiana under 42 U.S.C. §1983 alleging that restrictions on the use of their
property near the river violate due process, the Takings Clause and the Tenth
Amendment. The Plaintiffs named Barham as the sole defendant in the suit.
In December 2013, the district court denied the Plaintiffs’ request for a TRO.
Barham then filed a motion to dismiss the Plaintiffs’ suit. The district court
granted the motion and dismissed all claims for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs
appeal.
                                II. Discussion
      Plaintiffs’ Amended Complaint seeks damages for lost profits, punitive
damages, declaratory relief, and injunctive relief prohibiting interference with
their property. The district court dismissed all claims under Rule 12(b)(1),
holding that Barham is immune from claims for damages under § 1983
pursuant to the Eleventh Amendment, and that the claims for injunctive and
declaratory relief are unripe for adjudication.
      We review the district court’s dismissal for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) de novo.             In re FEMA Trailer
Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 

, 286 (5th Cir.
2012). “Under Rule 12(b)(l), a claim is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or constitutional power
to adjudicate the claim.” 

marks omitted) (quoting Home
Builders Ass’n, Inc. v. City of Madison, 

, 1010 (5th Cir. 1998)).
“Lack of subject-matter jurisdiction may be found in the complaint alone, the
complaint supplemented by the undisputed facts as evidenced in the record, or
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the complaint supplemented by the undisputed facts plus the court’s resolution
of the disputed facts.” 

      A.    Sovereign Immunity
      The district court dismissed all claims for damages pursuant to Eleventh
Amendment sovereign immunity.          Absent a state’s waiver of sovereign
immunity, “a suit by private parties seeking to impose a liability which must
be paid from public funds in the state treasury is barred by the Eleventh
Amendment.” Edelman v. Jordan, 

, 663 (1974). “When the action
is in essence one for the recovery of money from the state, the state is the real,
substantial party in interest and is entitled to invoke its sovereign immunity
from suit even though individual officials are nominal defendants.”            

Motor Co. v. Department of Treasury, 

, 464 (1945)).
The district court concluded that although Secretary Barham is the nominal
defendant in the instant suit, the Plaintiffs’ damages claims are essentially
claims for recovery of money from the state of Louisiana and are therefore
barred.
      On appeal, the Plaintiffs-Appellants’ arguments regarding sovereign
immunity do not directly address the district court’s clear reasoning for
dismissing the damages claims. The Plaintiffs restate a long litany of LDWF’s
alleged failures to follow state-law administrative procedures and allege that
the Comite River is privately owned and not subject to the LSRA. However,
they do not ever dispute or respond directly to the district court’s conclusion
that their damages claims essentially seek recovery of money from the state
and that Louisiana is therefore the “real substantial party in interest” in this
suit. 

district court noted, all of the alleged violations described by
the Plaintiffs relate to administrative agency actions taken by LDWF pursuant
to its enforcement authority. It is clear that the claims seek damages caused
by LDWF enforcement actions, and thus in effect seek recovery of money from
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                                  No. 14-30872
the state. We conclude that the district court correctly dismissed all claims for
damages pursuant to Eleventh Amendment sovereign immunity.
      B.    Ripeness

      The district court dismissed the remaining claims for declaratory and
injunctive relief because they were not ripe for adjudication. Ripeness is an
Article III jurisdictional issue pertaining to “whether the suit is being brought
at the proper time.” Texas v. United States, 

, 496 (5th Cir. 2007).
“A court should dismiss a case for lack of ‘ripeness’ when the case is abstract
or hypothetical.” New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 

, 586 (5th Cir. 1987) (citing Thomas v. Union Carbide
Agricultural Products Co., 

, 580 (1985); Socialist Labor Party v.
Gilligan, 

, 588-89 (1972)). “The key considerations are ‘the fitness
of the issues for judicial decision and the hardship to the parties of withholding
court consideration.’” 

Laboratories v. Gardner, 

, 149 (1967); Placid Oil Co. v. Fed. Energy Regulatory Comm’n, 

, 981 (5th Cir. 1982)). “A case is generally ripe if any remaining questions
are purely legal ones; conversely, a case is not ripe if further factual
development is required.” 

473 U.S. at 580).
      Regarding the first prong of the ripeness analysis, the district court
concluded that the issues in this suit are not fit for judicial consideration
because further factual development is required to adjudicate the Plaintiffs’
claims. We agree. In this suit, Plaintiffs claim that their property is not
subject to the LSRA and that LDWF has engaged in enforcement proceedings
not authorized by state law, which deprived them of due process and of
property rights. However, many issues directly relevant to these claims are
still pending in the Louisiana state court action wherein the Plaintiffs
currently seek to set aside the 2009 and 2010 consent orders by challenging
LDWF’s authority and the procedures it followed. Thus, as the district court
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noted, further fact findings relating to the issues in this suit “will necessarily
result from the state proceedings.” For example, one of the Plaintiffs’ primary
grievances is that they were not given a hearing relating to LDWF’s regulation
of their property, yet they admit that the proceedings are ongoing in the state
court. Other claims by the Plaintiffs may be contingent on whether the 2009
and 2010 consent orders—in which the Plaintiffs agreed to LDWF’s authority
and to take or refrain from certain actions pursuant to the LSRA—are set aside
by the state court. There may be no basis for the federal constitutional claims
unless the consent orders are nullified; at the very least, it is necessary to know
the state court’s resolution of the matter before those claims can be
adjudicated.
      No authority cited by Plaintiffs supports their assertion that the district
court erred in resolving the ripeness issue. Plaintiffs rely on Simi Investment
Company, Inc. v. Harris, 

, 247-48 (5th Cir. 2000), to argue that
substantive due process claims are not subject to an exhaustion requirement.
The exhaustion discussion in Simi is inapposite. Plaintiffs confuse ripeness
with exhaustion. The district court did not hold that the claims Plaintiffs
assert are subject to an exhaustion requirement. The court held that in the
circumstances of this particular case, further factual development will result
from the pending state court proceeding and will necessarily affect the claims
in this suit, and thus that the federal constitutional claims are not fit for
judicial review. Plaintiffs’ reliance on Sackett v. E.P.A., 

(2012),
is similarly misplaced. Sackett is an APA case which addressed whether a
particular action by the EPA was a “final agency action” within the meaning
of that statute. 

By contrast, the Plaintiffs seek to bring federal
constitutional claims via § 1983 against a state agency official. State agencies
are not, of course, subject to the requirements of the federal APA, see 5 U.S.C.
§ 701, and claims that a state agency’s or official’s actions violate the
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                                 No. 14-30872
Constitution are markedly different than claims that a federal agency failed to
follow the prescribed APA procedures.        The language of “finality” may
sometimes be similar, but here the specific question is not the finality of the
LDWF actions according to APA standards, but whether the facts forming the
basis of Plaintiffs’ claims are sufficiently developed so as to allow review of
their claims.   We agree with the district court that they are not.
      With regard to the second prong of the ripeness analysis, the hardship
to the parties of withholding review, see New Orleans Pub. Serv., 

, we again agree with the district court that the Plaintiffs cannot point
to any hardship resulting from withholding judicial consideration at this stage.
A Louisiana forum is already available to determine the propriety of LDWF’s
actions under Louisiana law. The burdens to all parties would only increase
should a federal court conduct parallel proceedings involving some of the same
underlying issues as are in dispute in the state court proceeding.
      Thus, the district court correctly determined that both the fitness and
hardship prongs of the ripeness analysis indicate that Plaintiffs’ action is
premature and should be dismissed.
                               III. Conclusion
      For the foregoing reasons, the district court’s dismissal of all the claims
is AFFIRMED.




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