First, as the Tribe concedes, the suit is the functional equivalent of an action to quiet its title to the bed of Lake Coeur d'Alene. It asks a federal court to declare that the lands are for the exclusive use, occupancy, and enjoyment of the Tribe and to invalidate all statutes and ordinances purporting to regulate the lands. The Tribe could not maintain a quiet title action in federal court without the State's consent, and for good reason: A federal court cannot summon a State before it in a private action seeking to divest the State of a property interest.... Second, the Tribe does not merely seek to possess land that would otherwise remain subject to state regulation, or to bring the State's regulatory scheme into compliance with federal law. Rather, the Tribe seeks to eliminate altogether the State's regulatory power over the submerged lands at issue — to establish not only that the State has no right to possess the property, but also that the property is not within Idaho's sovereign jurisdiction at all.

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 289, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) (O'Connor, J., concurring). If the Hamiltons prevail at trial, Reelfoot Lake will remain within the sovereign control of the State of Tennessee, and will continue to be subject to Tennessee's regulatory authority. At most, if the Hamiltons prevail, the State of Tennessee will be required to tailor its regulatory scheme to respect the Hamiltons' constitutionally protected riparian rights — something the state may be required to do for all owners of submerged Doherty land in accordance with the jurisprudence of the Supreme Court of Tennessee. The relief sought by the Hamiltons in this case does not begin to approach the far-reaching and invasive relief sought by the Tribe under the particular and special circumstances of Coeur d'Alene, and this court does not read the ruling of Coeur d'Alene to extend to the facts of this case.

Eleventh Amendment sovereign immunity does not bar the Hamiltons' claims for equitable prospective relief. The Hamiltons seek prospective relief to enjoin Tennessee officials from committing continuing violations of federal law, namely violation of their rights under the Fifth and Fourteenth Amendments, and therefore, the Ex Parte Young exception applies in this case. The principal opinion in Coeur d'Alene, written by Justice Kennedy, espouses a case-by-case, rather than a rule-based approach, to the application of the Ex Parte Young doctrine. See Coeur d'Alene, 521 U.S. at 277-82, 117 S. Ct. at 2038-2040. Nevertheless, this portion of the principal opinion failed to muster a majority of the Court. In fact, a majority of the court, including the four dissenting justices and the three justices joining in the concurring opinion, rejected Justice Kennedy's balancing approach, and held that it would continue to apply the Ex Parte Young rule as it has been traditionally understood. See id. at 296, 117 S. Ct. at 2047 (O'Connor, J., concurring (joined by Scalia and Thomas, JJ.); see also id. at 297, 117 S. Ct. at 2047-48 (Souter, J., dissenting (joined by Stevens, Ginsburg, and Breyer, JJ.). In short, "[a] Young suit is available where a plaintiff alleges an ongoing violation of federal law, and where the relief is prospective rather than retrospective." Id. at 294, 117 S. Ct. at 2046 (O'Connor, J., concurring) (emphasis in original). This case falls within the Ex Parte Young exception, and the district court erred when it held that this suit was barred by Eleventh Amendment sovereign immunity.

C. Procedural Due Process And Protected Property Interests.

The Hamiltons contend that the district court erred in its alternative holding that the defendants-appellees are entitled to summary judgment on the ground that the Hamiltons were unable to establish a constitutionally protected property interest in the waters of Reelfoot Lake or the land thereunder. In essence, the district court held that, by virtue of the State of Tennessee's ownership of Reelfoot Lake in public trust and the Tennessee legislature's enactments empowering state agencies to regulate the lake, even if the Hamiltons are Doherty land owners, they have no constitutionally protected property interests in their submerged land.

In considering procedural due process claims, this court first determines whether the interest at stake is within the Fourteenth Amendment's protection of liberty and property. See Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir.1997). Only after reaching a conclusion that the interest claimed is within that protection does this court consider the form and nature of the process that is due. See id. (citing Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S. Ct. 2701, 2705-06, 33 L. Ed. 2d 548 (1972)). Thus, in a section 1983 due process claim for deprivation of a property interest, a plaintiff first must show a protected property interest, and only after satisfying this first requirement can a plaintiff prevail by showing that "`such interest was abridged without appropriate process.'" Id. (quoting LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1108 (6th Cir.1995)).

Property interests protected by the due process clause must be more than abstract desires for or attractions to a benefit. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). The due process clause protects only those interests to which one has a "legitimate claim of entitlement." Id. at 577, 92 S. Ct. at 2709. This has been defined to include "`any significant property interests ... including statutory entitlements.'" Brotherton, 923 F.2d 477, 480 (6th Cir.1991) (citations omitted). As previously stated, property interests are not created by the Fourteenth Amendment, rather they are created and defined by independent sources, such as state law. See id. at 480 (quoting Roth, 408 U.S. at 577, 92 S. Ct. at 2709). State supreme court decisions are controlling authority for such determinations. See id.

As noted in the discussion supra in section II(B), the Hamiltons are claiming entitlement to riparian rights already determined by the Supreme Court of Tennessee to be protected property rights incident to the ownership of land submerged by Reelfoot Lake. See State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 752-53 (Tenn.1913). The district court held, however, that the Hamiltons were unable to reasonably identify the areas of land submerged by the lake to which they claim ownership because their deed to their real property on the lake merely establishes that their property extends to the ordinary low water mark of Reelfoot Lake. As the Supreme Court of Tennessee held, as the Doherty lands were "grantable by North Carolina, and were subject to private ownership before the formation of the lake, ... the mere fact that they have since become submerged by [Reelfoot Lake] does not deprive the owners of their title to the land as long as they can be reasonably identified." Id.

The Hamiltons contend, and the defendants-appellees do not dispute, that their property is subsumed within Doherty grant number fifty-one (51). In 1913, as is the case today, grant number 51 was not totally submerged, and portions of it formed parts of the shore of the lake. See id. As noted by the district court, the Hamiltons' 1979 warranty deed states that the Hamiltons' property on Reelfoot Lake extends to the lake's "ordinary low water mark." Because the State of Tennessee condemned grant number 51 in 1913, any land that is submerged when the lake is below its 1913 low water mark is owned in public trust by the state. However, any land that is submerged when the lake is above its 1913 low water mark is part and parcel of Doherty grant number 51. Thus, the key determinant of whether the Hamiltons have protected riparian rights is the location of the 1913 low water mark on Reelfoot Lake.

There is no evidence in the record affirmatively establishing the low water mark of Reelfoot Lake in 1913. The parties presented competent summary judgment evidence raising a genuine issue of material fact as to this issue. In his affidavit in opposition to the motion for summary judgment, Jamie Hamilton stated that he "saw the plans for the first spillway at Reelfoot Lake in 1917, and it showed the low water mark at 276.0 feet." This assertion, if true, is not merely conclusory and is based on a personal observation by the affiant. The defendants-appellees dispute the assertion, but do not present any evidence to the contrary. Rather, the defendants-appellees cite Tenn.Code Ann. § 70-5-113(b) which established the low water mark of Reelfoot Lake as of 1925: "[A]s first established by the Reelfoot Lake commission of 1925 ... (1)[t]he natural ordinary low water mark is two hundred eighty-two and four-tenths (282.4) mean sea level which is also the top of the twenty (20) floodgates at the Reelfoot Lake spillway dam."

Evidently, it is the case that the current water level of Reelfoot Lake is approximately 282.4 feet — the same level the lake was at in 1925. The Hamiltons allege that, starting in 1917, the State of Tennessee constructed a series of spillways or dams progressively raising the lake's water level from 276 feet to its present level. According to a 1985 United States Geological Survey, a 276-foot water-surface elevation covers 4,660 acres in surface area while a 282-foot water-surface elevation covers 14,800 acres. The Hamiltons claim to own portions of Doherty grant 51 submerged after 1913, and a genuine issue for trial exists as to the extent of their ownership of the Reelfoot Lake lake bed. If the Hamiltons can establish ownership of Doherty lands submerged after 1913, the Hamiltons have protected riparian rights in the waters above those lands.

D. Qualified Immunity.

Finally, the Hamiltons contend that the district court erred when it dismissed their claim for monetary damages against the defendants-appellees named in their official capacities under the doctrine of qualified immunity. Qualified immunity is a question of law and, as such, is reviewed de novo by this court. See Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000). Qualified immunity is an affirmative defense that is available to government officials performing discretionary functions. See Painter v. Robertson, 185 F.3d 557, 566 (6th Cir.1999). By operation of that doctrine, government officials "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known." Painter, 185 F.3d at 566-67 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). Accordingly, any "objectively reasonable" action by a state officer, as assessed in the light of clearly established law at the time of the conduct at issue, will be insulated by qualified immunity. Painter, 185 F.3d at 567. Thus, even if a public officer has deprived the plaintiff of a federal right, qualified immunity will apply if an objectively reasonable official would not have understood, by referencing clearly established law, that his conduct was unlawful. See id. (citing County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1714 n. 5, 140 L. Ed. 2d 1043 (1998)).

"In inquiring whether a constitutional right is clearly established, we must `look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.'" Id. (quoting Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir.1993)) (citation omitted). "The ultimate burden of proof is on the plaintiff to show that the defendants are not entitled to qualified immunity." Id. (quoting Rich v. City of Mayfield Hts., 955 F.2d 1092,1095 (6th Cir.1992)). Claims of qualified immunity are assessed on a fact-specific basis to ascertain whether the particular conduct of the defendant state employee infringed a clearly established federal right of the plaintiff, and whether an objectively reasonable officer would have believed that his conduct was lawful under extant federal law. See id. (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). Although the application of qualified immunity comprises a legal issue, summary judgment is inappropriate when conflicting evidence creates subordinate predicate factual questions which must be resolved by a fact finder at trial. See id.

The Hamiltons argue that the TWRA employees named as defendants in their individual capacities violated their rights under the Fourth, Fifth, and Fourteenth Amendments because they participated in an unlawful seizure of their boat, duck blind, and duck decoys. The defendants-appellees argue that they are entitled to qualified immunity because they acted within their authority. The parties do not dispute a) that TWRA employees removed the Hamiltons' boat, blind, and decoys from Reelfoot Lake on November 16, 1996; b) that the blind site from which they were removed, the pole near the Hamilton Resort, was neither registered with nor permitted by the TWRA; and c) that all property was returned to the Hamiltons ten days after it was removed.

The defendants-appellees' search of the Hamiltons' property did not violate the Hamiltons' rights. The TWRA has broad enforcement over Tennessee wildlife laws. See Tenn.Code Ann. § 70-1-305. Specifically, the TWRA is authorized to administer activities at Reelfoot Lake. See Tenn.Code Ann. § 70-1-305(11). Among other things, the TWRA has the power to "[e]nforce all laws relating to wildlife, and to go upon any property, outside of buildings, posted or otherwise, in the performance of the executive director's duties." Tenn.Code Ann. § 70-1-305(1). A boat or blind can be searched at any time during hunting season. See Tenn.Code Ann. § 70-6-201. Furthermore, section 70-6-101 imposes a duty on wildlife officers to ascertain whether requirements of wildlife statutes and regulations are being followed. See Hughes v. State, 195 Tenn. 290, 259 S.W.2d 527 (1953). Thus, TWRA officers clearly have the authority to go on property to inspect visible waterfowl blinds during an open hunting season.

Everyone who participates in the privilege of hunting has a duty to permit inspections to determine whether they are complying with applicable laws. See Tenn. Code Ann. § 70-6-101(b). Hunting and fishing are regulated activities under both state and federal law. The Supreme Court has found that a warrantless search of a regulated industry or business is reasonable. See, e.g., New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987). In Monroe v. State, 194 Tenn. 519, 253 S.W.2d 734 (Tenn.1952), the Supreme Court of Tennessee reaffirmed the right of game wardens to make inspections and conduct searches without warrants when it is clear that someone has been exercising hunting privileges. In discussing State v. Hall, 164 Tenn. 548, 51 S.W.2d 851 (Tenn.1932), the court stated:

In the Hall case it was not expressly held that the Act authorized Game Wardens to make searches without search warrants but such is clearly the inescapable implication. This Court speaking through the late Mr. Justice McKinney cited a wealth of authority to illustrate the proposition that he who undertakes to avail himself of a privilege granted by the State must do so on whatever terms and conditions the State chooses to annex to the exercise of the privilege, including the waiver of constitutional rights.

Monroe, 253 S.W.2d at 735-36.

TWRA officers' search of the Hamiltons' boat, blind, and decoys was within their authority. After spotting a floating blind in what they considered to be TWRA-administered waters, TWRA officers inspected the blind. The statutes and jurisprudence discussed above authorized them to inspect the blind without a search warrant. Upon inspecting the blind, officers found that it had no registration number affixed to it, which communicated to the officers that it was not registered as a permanent or annual draw blind, and they observed shot gun shells on its floor. Thus, the officers presumed the blind to be a "temporary" blind and, as such, the blind should not have been on the lake. Unlike permanent and draw blind sites, no registration is required for temporary blinds, but state regulations require that a temporary blind be removed from the lake at the end of each day's hunt. See Tenn. Comp. R. & Regs., ch. 1660-1-2-.02(3)(c)6 and 8.

The defendants-appellees also acted within their authority when they removed the Hamiltons' property from Reelfoot Lake. Regulations provided ample notice to the Hamiltons that their property could be removed from the lake. Before the property was removed, defendants confirmed that the floating blind was not a registered permanent or draw blind site. Therefore, they treated the blind as temporary. State regulations provide that "[h]unters may hunt from temporary cover provided that all decoys and materials are removed at the end of each day's hunt." See Tenn. Comp. R. & Regs., ch. 1660-1-2-.02(3)(c)8. The Hamiltons' blind was discovered after the hunting day had ended. The regulations also permit the removal of illegal, floating blinds from Reelfoot Lake:

No blind may be constructed, or repaired, or any floating blinds moved onto the area that has not met the deadline for registering the blind and displaying the registration number, as prescribed. Unregistered and/or unnumbered blinds are subject to removal at the discretion of the area manager or a designee of the Tennessee Wildlife Resources Agency.

Tenn. Comp. R. & Regs., ch. 1660-1-2-.02(3)(c)10. Upon orders from the TWRA regional office, TWRA officers removed the Hamiltons' property (boat, blind and decoys) from the lake.

The Hamiltons argue that the TWRA had no authority to remove their properly registered boat because the TDEC has the power to regulate navigability on Reelfoot Lake. Furthermore, they contend that the boat should not be treated as a component of the blind because, in 1996, the regulatory meaning of the terms "blind" and "floating blind" were ambiguous. The TWRA acknowledged the terms' ambiguity. The Hamiltons argue that any ambiguity as to what structures could be removed from the lake militate against qualified immunity. Ambiguity, however, argues in favor of qualified immunity. Regulations did not prohibit TWRA officers from removing floating blinds with a boat component. The record does not provide a clear description or any pictures of how the blind was affixed to the boat (which was aluminum, 14 to 16 feet in length, and had no motor) but, as the blind was attached to the boat, it would have been reasonable for the officers to conclude that the boat was a component of the blind in that it provided the "float."

Additionally, defendants are shielded from plaintiffs' claim that the retention of their property for ten days violated their Fifth and Fourteenth Amendment rights. In Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), the Supreme Court stated that in many situations it is impracticable or impossible to provide an opportunity to be heard before the initial deprivation of a property interest. In those instances, the requirements of due process are met if the state provides an adequate post-deprivation remedy. See id. It is undisputed that the Hamiltons received notice of the seizure on the day of the seizure — November 16, 1996. After removing the boat, the TWRA discovered that it was registered to Hamilton, but it did not return the boat to Hamilton at that time because it wanted to conduct further investigation into who was actually using the boat/blind when it was left unattended. Wildlife agencies have procedures for claiming seized property but, because the Hamiltons' property was returned within 10 days, those procedures are inapplicable here. See Tenn.Code Ann. § 70-6-204 (providing for hearings).

In light of the forgoing discussion, this court holds that the Hamiltons have not met their burden of demonstrating that the defendants violated clearly established rights of which a reasonable official would have been cognizant on November 16, 1996. Thus, the district court was correct in its determination that the defendants sued in their individual capacities are entitled to qualified immunity.

For the foregoing reasons, we AFFIRM the district court's dismissal of the Hamiltons' claims against the TWRA employees sued in their individual capacities. We REVERSE the district court's holdings (1) that the Hamiltons had no constitutionally protected property interest in Reelfoot Lake or its submerged lands and (2) that the Hamiltons' claims against the defendants sued in their official capacities were barred under Eleventh Amendment sovereign immunity. We REMAND to the district court for further proceedings not inconsistent with this opinion.