___________ No. 95-3774

___________ In Re: National Cattle * Congress, Inc., * * Debtor. *

------------------------------- * * National Cattle Congress, Inc., * Appeal from the United States * District Court for the Plaintiff - Appellee, * Northern District of Iowa. * v. * [TO BE PUBLISHED] * Iowa Racing & Gaming * Commission, * * Defendant - Appellant. *

___________ Submitted: April 8, 1996 Filed: August 2, 1996

___________ Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN , Circuit Judge.

___________
PER CURIAM.

In 1986, the National Cattle Congress, Inc. ("NCC"), a nonprofi t corporation, began operating a pari-mutuel dog t rack in Iowa, the Waterloo Greyhound Park, under license from the Iowa Racing and Gaming Commission (the "Commission"). The track began to suffer losses in 1992, and NC C file d for Chapter 11 bankruptcy protection on December 16, 1993. I n Nov ember 1994, the Commission passed a resolution to revoke NCC's pari

mutuel license (absen t voluntary surrender) on the ground that NCC lacked financial responsibility sufficient to operate the track. See Iowa Code Ann. §§ 99D.9(3)(b) and (7).

### The HONORABLE PAUL J. KILBURG, United Sta tes Bankruptcy Judge 1 

### for the Northern District of Iowa. The HONORABLE EDWARD J. MCMANUS, United S tates District Judge 2 

### for the Northern District of Iowa. -2- To avoid loss of its license, NCC as debtor-in-possession moved the bankruptcy court to declare that the Commission's revocation resolutio n viol ates the automatic stay provisions of 11 U.S.C. §§ 362(a)(1) an d (a)(3). The Commission responded that its revocation is a regulator y action ex empt from the § 362(a)(1) stay under § 362(b)(4), and tha t § 3 62(a)(3) does not apply because the Commission does not seek t o "exercise control over property of the estate." The bankruptcy court 1 granted NCC's motion, concluding that the Commission's resolution to revok e was an exe mpt exercise of its regulatory powers, but revocation is a n exercis e of control over property of NCC's estate (the license) whic h violates §§ 362(a)(1) and (a)(3) unless and unti l the Commission seeks and obtains a lift-stay order. In re National Cattl e Congress, Inc. , 179 B.R. 588, 597-98 (Bankr. N.D. Iowa 1995). The district court affirmed, an d 2 this appeal followed. We have jurisdiction over an appeal from an order enforcing the automatic stay in bankruptcy under either 28 U.S.C. § 158(d) or 28 U.S.C. § 1292(a )(1). See In re James Wilson Assocs. , 965 F.2d 160, 166 (7th Cir. 1992); In re Apex Oil Co. , 884 F.2d 343, 347 (8th Cir. 1989) ; In re Leimer , 724 F.2d 744, 746 (8th Cir. 1984).
While the case was pending on appeal, the Supreme Court decide d Seminole Tribe of Fla. v. Florida , 116 S. Ct. 11 14 (1996). Seminole holds that the Indian Comme rce Clause, U.S. Const. art. I, § 8, cl. 3, does not grant Congress the power to abrogate a State's i mmunity under the Eleventh Amendment. Seminole expressly overrules Pennsylvania v. Union Gas Co. , 49 1 U.S. 1 (1989), which held that the Interstate Co mmerce Clause, U.S. Const. art. I, § 8, cl. 3, granted Congress the power to abrogate Elevent h Amendment immunity. The Commission suggests that an order enforcing the

### -3-

automatic stay against the Commission violates the State of Iowa's Elevent h Amendment immunity as construed in Seminole . There is much to indicat e that this may be a complex and serious issue. S ee Seminole , 116 S. Ct. at 1131-32 n.16; Ohio Ag ric. Commodity Depositors Fund v. Mahern , 116 S. Ct. 1411 (1996), vacating In re Merchants Grain, Inc. , 59 F.3d 630 (7th Cir. 1995) (remanding a bankruptcy case for further consideration in light of Seminole ); In re Martinez , 196 B.R. 225, 230 (D.P.R. 1996); 11 U.S.C
. § 106(a). Accordingl y, without reaching the merits of the bankruptcy and district court orders under review, and without expressing a view as to th e Eleventh Amendment issue, we remand this case to the district court with instructions to remand to the bankruptcy court for further consideration in light of Seminole
. A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.