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No. 95-3774

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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. *

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 Submitted: April 8, 1996

 Filed: August 2, 1996

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

Circuit Judge.

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PER CURIAM.

In 1986, the National Cattle Congress, Inc. ("NCC"), a nonprofit

corporation, began operating a pari-mutuel dog track 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 NCC

filed for Chapter 11 bankruptcy protection on December 16, 1993. In

November 1994, the Commission passed a resolution to revoke NCC's parimutuel license (absent 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 States Bankruptcy Judge 1

for the Northern District of Iowa.

 The HONORABLE EDWARD J. MCMANUS, United States District Judge 2

for the Northern District of Iowa.

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To avoid loss of its license, NCC as debtor-in-possession moved the

bankruptcy court to declare that the Commission's revocation resolution

violates the automatic stay provisions of 11 U.S.C. §§ 362(a)(1) and

(a)(3). The Commission responded that its revocation is a regulatory

action exempt from the § 362(a)(1) stay under § 362(b)(4), and that

§ 362(a)(3) does not apply because the Commission does not seek to

"exercise control over property of the estate." The bankruptcy court1

granted NCC's motion, concluding that the Commission's resolution to revoke

was an exempt exercise of its regulatory powers, but revocation is an

exercise of control over property of NCC's estate (the license) which

violates §§ 362(a)(1) and (a)(3) unless and until the Commission seeks and

obtains a lift-stay order. In re National Cattle Congress, Inc., 179 B.R.

588, 597-98 (Bankr. N.D. Iowa 1995). The district court affirmed, and

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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 decided

Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996). Seminole holds

that the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3, does not

grant Congress the power to abrogate a State's immunity under the Eleventh

Amendment. Seminole expressly overrules Pennsylvania v. Union Gas Co., 491

U.S. 1 (1989), which held that the Interstate Commerce Clause, U.S. Const.

art. I, § 8, cl. 3, granted Congress the power to abrogate Eleventh

Amendment immunity. The Commission suggests that an order enforcing the
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automatic stay against the Commission violates the State of Iowa's Eleventh

Amendment immunity as construed in Seminole. There is much to indicate

that this may be a complex and serious issue. See Seminole, 116 S. Ct. at

1131-32 n.16; Ohio Agric. 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). Accordingly, without reaching the merits of the bankruptcy and

district court orders under review, and without expressing a view as to the

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.