### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30315

R.T. FAULK, III; COREY FARMS, L.L.C.; FAULK FARMS, INC.; JOANNE HODGES; RIVER VALLEY PROPERTIES; McHENRY FARMS, L.L.C.; SHERMAN SHAW; MRS. T.P. GODWIN; WILLIAM G. NADLER; McHENRY REALTY PARTNERSHIP, Plaintiffs-Appellees STATE OF LOUISIANA, Intervenor Plaintiff-Appellee

v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellant

Appeals from the United States District Court for the Western District of Louisiana USDC No. 3:07-CV-00554

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM: * In this suit, Defendant

- Ap p e llant Union Pacific Railroad Co. (“Union Pacific”) appeals the district court’s grant of summary judgment in favor of U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 3, 2 011 Lyle W . Cayce Clerk

Purs uant to Fift h Circ uit Rule 47.5 , the cour t has det erm ined that this opi nion sho uld * not be publ ish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t for th in Fift h Circ uit Rule 47.5 .4. Case: 11-30315 Document: 00511654318 Page: 1 Date Filed: 11/03/2011No. 11-30315

Plaintiffs-Appellees the State of L o u isiana and private landowners. For the

reasons that follow, we find that the State of Louisiana is immune from suit, VACATE the grant of summary judgment in favor of the State, and REMAND for entry of a judgment of dismissal of this suit as it pertains to the State. We further VACATE the district court’s grant of summary judgment on the issue of th e c o n s titutionality of Louisiana Revised Statute Section 4 8 : 3 9 4 , an d R E MAND in order for the district court to more fully develop the record rega r ding the property interests at issue.

I. FA C T UA L AN D P R O C E D U R A L BA C K G R O U N D On January 22, 2 0 0 7, Plaintiffs-Appellees R.T. Faulk, I II, Corey Farms, LLC, Faulk Farms, Inc., Joanne Hodges, River Valley Properties, Mc H enry Farms, LLC, Sherman Sh a w , Mrs. T.P. Godwin, William P. Nadler, and McHenry Realty Partnership filed suit against Defendant-Appellant Union Pacific in Louisian a s tate court, seeking declaratory and injunctive relief to pre v ent Union Pacific from closing ten private railway crossings over an approximately fiv e-mile section of track in Ouachita Parish, Louisiana, and to require that Union Pacific reopen the crossings it had already closed. The plaintiffs alleged that they or their pr e d ecessors in interest had used the crossings continuously since rights-of-way over their properties were granted to Union Pacific’s predecessors in the 1880s. The plai n t i f fs claimed that the closures would significantly burden them and imp a i r their title to their lands beyond the limits of the rights-of-way that had been granted to Union Pacific’s predecessors in title. Union Pacific removed the case to the Western District of Louisiana on the basis of diversity jurisdiction and filed a counte r claim against the plaintiffs, seeking d e c l aratory and injunctive relief permitting it to close the private crossings, and preventing the private landowner plaintiffs from interfering in the closures and from creating new crossings. The railroad then filed a motion

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for summary j u d g m e nt in January 2008, arguing that the plaintiffs had not provided sufficient proof of their ownership of the land to e s t ab l i s h their right to the crossings. After the parties had briefed the i s s u e, the case was stayed pending the outcome of this Court’s decision in Franks Investment Co. v. Union P ac ific Railroad Co. , 593 F.3d 404 (5th Cir. 2010) (en banc). Once this C o u rt issued its opinion in Franks , holding that a state-law action against a railroad regarding use of private crossings was not preempted by fede r a l law, see 593 F.3d at 415, the district court lifted the stay in this case and litigation resumed. While the case was stayed, the Louisiana Legislature enacted Act No. 530, codifie d a t Louisiana Revised Statutes Section 48:394 (“Section 48:394”), requiring that all railroad companies obtain permission from the Louisiana Public Service Commission (“LPSC”) before closing or r e moving a private railroad crossing. Section 48:394 went into effect on August 15, 2008, and sets 1 out a procedure that a railroad must follow whe n it wishes to close a public crossing. Originally, a railroad had to convince the LPSC that “c l osure or

r e m o v al” of the particular crossing was “necessary for safety and in the bes t interests of the public.” 2008 La. Acts. 530, § 1. Based on this Court’s ruling in Franks , the Lo u i s iana Legislature amended Section 48:394 with Act 858 to change the standard for closing a crossing to “unreasonab ly burdens or substantially interferes with rail transportation.” 2

Sec tio n 48:3 94 wa s enac ted on June 30, 2008, wh ich is the dat e the dis tri ct cour t use d 1 i n det erm ining wh ethe r the st atut e app lied to the clos ure of a private cro ss ing, rat her t h a n usi ng the stat ute’ s effec tive da te. Ho we ver, as the di st ric t cour t note d, “th e rec ord indi cat es that no cro ss ings were clos ed after this law sui t wa s filed on January 22, 2007; ther efo re, the eff ect ive dat e doe s not change the [dist ric t cour t’s ] analys is or dis pos itio n of the clai ms in this mat ter .”
Thes tat ute, init s currentf orm , read s as fol low s: 2

A. (1) Any railroad com p a ny ope rat ing in this st ate wh ich

des ires to clos e or rem ove a private cro ss ing sha ll, no les s than one hundr e d eighty days prior to the pr opo se d

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Union Pacific’s motion for summary judgment was reopened on March 2, 2010. The plaintiffs filed a corrected, amended, and restated answer to Union

clos ing or rem oval, pr ovide a writt en requ es t by regis ter ed or certif

i e d m ail to the Louis iana Public Service Com mi ss ion and to the ow ner or ow ners of rec ord o f t he private cro ss ing travers ed by the rail line. The wr itt en requ es t sha ll s t a t e the man ner in wh ich suc h private rail road cro ss ing unrea so nably burd ens or sub st anti a l l y inte rf ere s wi th railt rans por tat ion. (2) The Louis iana Public Service C o m m i ss ion sha ll publ ish the wr itt en requ es t fr om the rail road com pany in the com mi ss ion’ s off icia l bullet in for no les s than tw enty- five days

. B. No private cro ss ing sha ll be clos ed or rem oved by any rail road com pany until aft er a public hearin g b y the Louis iana Public Service Com mi ss ion at wh ich par tie s i n i n t ere st have had an opp ort unity to be h e a r d

. Not ice of the tim e and plac e of the hearing sha ll be publ ish ed in the off icia l journa l of the parish and the com mi ss ion’ s off

icia l bullet in and at leas t fif tee n days sha ll elap se betw een the publ i c a t i o n and the dat e of the hearing. In additio n to noti ce by publ icat ion, and at leas t ten days prior to the hearing, a good fai th att em pt to noti fy the o w ner or ow ners of rec ord of the pr ope rty wh ere t h e p r iv ate cro ss ing is loca ted sha ll be mad e by the com mi ss ion by se ndin g an off icia l noti ce by regis ter ed or cer tif

ied mai l of the tim e and plac e of the hearing to the add res s or add res se s i n d i c a t e d in the mo rtgage and conveyan ce rec ord s of the parish

. The publ ic hearing shall be held not les s than sixt y days aft er rec eip t of r e q u e s t o f the rail road com pany as pr ovide d in Subs ection A of t hisS ect ion.
C. If, aft er suc h publ ic hearing, the com mi ss ion det erm ines that t he private rail road cro ss ing unrea so nably burd ens o r sub st antia lly inte rf

ere s wi th rail tra nsp ort atio n, the com mi ss ion sha ll publ ish in the off icia l j ourna l of the parish wh ere suc h cro ss ing is loca ted and in the com mi ss ion ’ s o f fic ial bullet in a noti ce st ating the man ner in wh ich suc h clos ure or rem oval sha ll be mad e a nd the dat e o f suc h.
D. Thep rovis ions of

t hisS ect ion sha ll not app ly whena private land ow ner or land ow ners and a rail road com pany ente r into a cons ens ual or negot iate d wr itt en agre e m e n t or agree me nts to clos e ap rivat e r ailr oadc ros sin g. La. Rev. Sta t. § 48:3 94. 4 Case: 11-30315 Document: 00511654318 Page: 4 Date Filed: 11/03/2011No. 11-30315

Pacific’s counterclaim, asserting Section 48:394 as designating the appropriate venue and procedure for resolving disputes over the removal of crossings. The parties f

i led supplemental briefs on Union Pacific’s motion for summary judgme n t , a n d o n August 22, 2010, the district court issued its ruling. The district court held that it did not need to rule o n p l a i nt i f fs’ state property-law claims as to cr o s s i n g s in existence on or after June 30, 2008, when Section 48:394 became law, because the statute “specifies the manner and venue in which disputes about the closure of private railr o a d crossings must be resolved, regardless of who owns the property.” As to crossings closed prior to the enactment of Section 48 : 3 9 4 , the court ruled that certain plaintiffs who claimed to be lessees did not have standing to sue for declaratory and injunctive relief regarding ownership and possessory rights t o the private crossings. Plaintiffs who claimed to be owners, however, had raised genuine disputes of material fact for trial. In its ruling, the di s t ri c t c ourt also stated its intent to grant summary judgment sua sponte in favor of the plaintiff lan d o w n e r s on certain of their requests for re l i e f, w h i le giving Union Pacific time to file a memorandum in opposition before issuing a final decision. The district court indicated it would rule that Union Pacific had only rights-of-way through the land at issue. It also stated that it would declare that any crossing closures that occurred on or after June 30, 2008 were improper because Section 48:394 required that Union Pacific apply to the LPSC for authorization to close private crossings. T he court reserved for trial a ruling as to whethe r the crossing closures that occurred before June 30, 2008 were improper. The district court als o g av e n o tice that it would sua sponte grant the plaintiff landowners’ request for a permanent injunction preventing Union Pacific from closing any private crossings without first going through the process outlined in Section 48:394. The court intended to sua sponte grant plaintiffs

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conditional injunctive relief regarding private crossings that were closed on or after June 30, 2008, as well, requiring that Union Pacific either reopen them or apply to the LPSC for permission to close t h e m within 30 days of the court’s judgment. Finally, the di strict court addressed Union Pacific’s counterclaim. The district court stated that it intended sua sponte to dismiss the railroad’s request for declaratory relief as to any crossings existing or closed on or after June 30, 2008, and to dismiss its request for injunctive relief prohibiting the plaintiffs from interfering with the closure of any crossings. The court found that under Section 48:394 the district court was no longer the appropriate forum for Union Pacific’s claims. As to crossings closed before June 30, 2008, the court reserved for trial Un i o n P a c i f

ic’s request for declaratory relief. The district court also i ndicated that it intended to deny Union Pacific’s request for an injunction preventing the plaintiff landowners from constructing any more crossings without the railroad’s consent, because there was no evidence indic atin g that the plaintiffs would do so. Union Pacific and the plaintiff landowners both filed briefs in response to t h e di strict court’s ruling, and Union Pacific also filed a motion f o r reconsideration. In addition, Union P a c i f ic issued a summons to the Attorney General of L o u i s iana because the railroad had filed a notice of constitutional challenge regar din g S ectio n 4 8 : 3 9 4

. C o n sequently, while reserving its sovereign immunity under the Eleventh Amendment, the State filed a motion to intervene,

an intervenor complaint, and a brief in opposition to Union Pacific’s motion for partial summary judgment. Once briefing was complete, the district court issued a ruling denying Union Pacific’s motion for summary judgment as to any claims or defenses based

on Sect i o n 4 8:394, denying the railroad’s motion for reconsideration, and

e njoining Union Pacific from closing any of the plaintiffs’ existing crossings

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without authorization from the LPSC, pursuant to Se ction 48:394. The court also dismissed with prejudice Union Pacific’s request for declaratory relief as to any existing crossings, and its request f o r injunctive relief preventing the plaintiffs from interfering with the closure of private crossings. In addition, the district court dismissed without prejudice Union Pacific ’ s r e quest for an injunction preventing the plaintiffs from constructing more p riv a te crossings without the railroad’s consent. After receiving the district court’s ruling, Union Pacific made a motion for certification of parts of the judgment as immediately appealable under 28 U.S.C. § 1292(b). The district court granted the motion, and we p e rmitted an interlocutory appeal to be taken from the order. See28 U.S.C. § 1292(b). II. S TAN D A R D O F R E V I EW This Court reviews a district court’s grant of summary judgment de novo and applies the same standard as the district court. Holt v. State Farm Fire & Cas. Co. , 627 F.3d 188, 191 (5th Cir. 2010)

. U n d er that standard, summary judgment is appropriate when “there is no genuine dis p u t e as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When reviewing a motion for summary judgment, the Court construes all the evidence and reasonable inferences in the light most favorable t o th e nonmoving party. Amazing Spaces, Inc. v. Metro Mini Stora ge , 6 0 8 F .3d 225, 234 (5th Cir. 2010) (quoting Xtreme L as h e s, LLC v. Xtended Beauty, Inc. , 576 F.3d 221, 226 (5th Cir. 2009)). We also review issues of law, such as whether a state is entitled to sovereign immunity, de novo. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011). III. ANA LY S I S Though the parties in this case raised multiple claims and counterclaims in the district court, the district court certified three questions for this interlocutory appeal:

7 Case: 11-30315 Document: 00511654318 Page: 7 Date Filed: 11/03/2011No. 11-30315 (1) Is Louisiana Revised Statute 48:394 (“the Act”) constitutional under the United States and Louisiana Constitutions? (2) Is the Act preempted by federal law? (3) D o e s t h e Ac t a p p l y t o t h e p r i v a t e r a i l r o a d crossings in this case?
The parties agree that the only issue on appeal is whether or not Section 48:394 authorizes a t a king of Union Pacific’s private property without public purpose in violat i o n of the Louisiana Constitution’s takings clause. Thus, we need consider only the first and third questions from the district court; any arguments regarding preemption have been waived, and that question is not before us. See Q uick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 343 n.3 ( 5 t h C i r . 2002). The district court held that Section 48:394 does not permi t an unconstitutional taking under the Louisiana Constitutio n because (1) Union Pacific had not proven its ownership of the property in question, and (2) even if Union Pacific possesses ownership rights over the property, Section 48:394 does not cause a “substantial interference” with the railroad’s use and enjoyment of its property. On appeal, Union Pacific argues that the district court incorrectly applied Louisiana takin g s law, and that Section 48:394 is unconstitutional as applied to the ten crossings at issue in this case. The State of Louisiana and the private landowner plaintiffs counter that the State’s sovereign immunity under th e E l eve nth Amendment bars Union Pacific’s state-law claim again s t Loui s i an a and its officials. The priv a t e l a n d o wners also urge this Court to affirm the district court’s judgment as to the constitutionality of Section 48:394. We first take up Louisiana’s claim that it enjoys sovereign immunity from Union Pacific’s suit. “The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, and by its own citizens as well.” Lapides v. Bd. of Regents , 535 U.S. 613, 616 (2002) (citation omitted); Meyers ex

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rel. Benzing v. Texas , 410 F.3d 236, 240–41 (5th C ir . 2 0 0 5 )

. As we more fully 3
set out in our opinion also issued today in a companion case, Union Pacific Railroad Co. v. Louisiana Publ i c Se r v i c e Commission, et al. , No. 10-31241, a state may waive its Eleventh Amendment immunity. Lapides , 535 U.S. at 618; Idaho v. Coeur d’Alene Tribe of Idaho , 521 U.S. 261, 267 (1997). To be valid, such a waiver must be unequivocal, and the state must v o l u n t a ri ly invoke federal jurisdiction. See Atas c adero State Hosp. v. Scanlon , 473 U.S. 234, 238 n.1 (1985) (stating that an “unequivocal indication” is generally required before

a waiver of immunity will be found); Lapides , 535 U.S. at 6 2 2 (“This Court consistently has found a waiver when a State’s attorney general, authorized

... to bring a case in federal court, ha s v o l u n t a rily invoked that court’s jurisdiction.”); Benzing , 410 F.3d at 249 (stating that “the voluntary invocation principle applies generally in all cases”). Therefore, in deciding whether or not

a state has waived its sovereign immunity, w e m ust determine if the state voluntarily invoked or submitted to federal jurisdiction through its conduct in the district court. H e r e , a s Union Pacific argues, it is true that Louisiana voluntaril y i n t ervened in the suit between the private landowners and the railro a d

. Howeve r , the State did so only after being summonsed to federal court. The

summons notified the Attorney General of Louisiana that “[a] lawsuit has been filed against [h i m],” and that he “ must serve on the plaintiff an answer.” (Emphasis added). If he failed to do so, “judgment by default [would] be entered against [him] for the relief demanded.” Thus, Louisiana never voluntarily invoked federal court jurisdiction. In addition, Louisiana makes no claims of its

own in this case, and merely defends against Union Pacific’s challenge to the

The ter ms “s tat e so verei gn im mun ity” and “Eleve nth Ame ndm ent im mun ity” ar e 3 oft en use d inte rch angeably to me an the sam e thing. Benz ing , 410 F.3d at 240, 251–52; see also Wats on v. T

exas , 261 F.3d436 , 440 n.4 (5t h Cir

. 2001)

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constitutionality of Section 48:394. Cf. Clark v. Barnard , 108 U.S. 436, 447-48 (1883) (holding that a State’s voluntary intervention in a federal-court action to assert its own claim constituted a waiver of i m munity) ; B io m e dical Patent Mgmt. Corp. v. Cal., Dept. of Health Servs. , 505 F.3d 1328, 1333 (9th Cir. 2007) (stating that “it is clear that, by intervening and asserting claims against BPMC in the 1997 lawsuit, DHS voluntarily invoked the district court’s jurisdictio n and, thus, waived its sovereign immunity for purposes of that lawsuit”). Furthermore, in its motion to intervene and its intervenor complaint, the State express ly reserved its immunity: “The State does not hereby waive its Eleventh Amendment sovereign immunity.” If forcing the State to intervene could compel a w a iver of sovereign immunity, any plaintiff could “essentially nullify the Eleventh Amendment” by raising a state constitutional challenge in federal court. Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs , 5 8 4 F.Supp.2d 1367, 1372 (S.D. Ga. 2008) (ruling there was no waiver o f immunity where the plaintiff filed an in rem suit against the State’s property in federal court, “thereby forcing the State to intervene”), aff’d on other grounds by Aqua Log, Inc. v. Georgia , 594 F.3d 1330 (11th Cir. 2010). Louisiana has made it clear that it “does [not] intend to become

... a party to this litigat i on for the
purposes of any damages,” and that it “merely intervenes herein for the express purposes of being heard on the challenged constitutionality of [Section 48:394].” Accordingly, we find that Loui s i an a retains its Eleventh Amendment immunity, and is immune from any suit by Union Pacific. However, a finding that the State of Louisiana is immune from suit does not lead to a finding that this appeal should be dismissed in its entirety, because the State’s immunity does not extend to the action between Union Pacific and the private landowners. See U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to exte n d t o a ny s uit in law or equity, commenced or prosecuted against one of the United States ...”) (emphasis added).

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As stated supra , the district court held that Union Pacific had not proven its

owner s h i p rights over the rights-of-way at issue here. Therefore, the district court “reserve[d] for trial the question of wheth e r U n i o n Pacific possesses ownership rights in its rights of way, as there are genuine issues of material fact that preclude judgment on this mat t e r . ” T he district court went on to hold, however, that “[e]ven assuming that Union Pacific possesses ownership rights affected by the Act, its unconstitutional-taking claim still fails.” It is a basic tenet of American jurisprudence “that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Camreta

v. Greene , __ U.S. __, 131 S.Ct. 2020, 2031 (2011) (qu o ti n g L y ng v. Northwest Indian Cemetery Protective Ass’n , 485 U.S. 439, 445 (1988))

. Here, if Union Pacific does not have ownership rights over the property a t i s sue, then there would be no need to reach the question of whether or not Section 48:394 results in an unconstitutional taking, as a prerequisite for such a claim is the existence

o f private property capable of being taken. The district court recognized t h i s fact, writing that “[i]f Union P a c i f i c d o es not possess ownership rights in the property disputed in this matter, then the Act cannot authorize a taking of Union Pacific’s ‘right to exclusive dominion and control over that property.’” (quoting Union Pacific’s Opposition to Sua Sponte Judgment). However, the district court went on to make unnecessary findings as to the constitutionality of Section 48:394, based on an assumption regarding Union Pacific’s ownership rights. In this action, Union Pacific brings an as-applied challenge to Section 48:394. Therefore, a finding t h a t t h e Act is valid under hypothetical circumstances, rather than the actual circumstances at issue here, is improper in the context of this case. “For an appeal under 28 U.S.C. § 1292(b), we may ‘address any issue fairly included within the certified order because it is the order that is appealable, and not the controlling question identified by the district court’.” Melder v. Allstate

11 Case: 11-30315 Document: 00511654318 Page: 11 Date Filed: 11/03/2011No. 11-30315

Corp. , 404 F.3d 328, 331 (5th Cir. 2005) ( quoting Yamaha Motor Corp., U.S.A.

v. Calhoun , 516 U.S. 199, 205 (1996)). Because the district court held that Union Pacific had not yet proven its property rights, and the statute can only apply if Union Pacific has ownership of the crossings, the ques tio n wh eth er Union Pacific

owns the property is an issue “fairly included within the certified order.” Id

. For the reasons discussed above, answering that questio n i s a l so a necessary precursor to any considera t i o n o f the statute’s relevance here and its constitutionality. Accordingl y , w e d e c line at this time to answer the certified questions regarding the constitutionality of Section 48:394 and its applicability to the private railroad crossings in this case. We fur t h e r v a cate the district court’s holding that Section 48:394 is constitutional, a nd remand for a determination of the respective property rights of the private landowners and Union Pacific to the private railroad crossings at issue. Should the district court find that Union Pacific has ownership rights over the rail r o a d crossings, the record will be sufficiently developed at that time to permit a ruling regarding the constitutionality of Section 48:394. IV. C O N C L U S I O N For the foregoing reasons, we conclude that the Sta t e o f Louisiana is entitled to immunity, VACATE the summary judgment granted in favor of the State, and REMAND for entry of a judgment of dismissal of Union Pacific’s suit against the State. We further VACATE the district court’s ruling that Louisiana Revised Statute Section 48:394 is constitutional, and REMAND for a full determination of the respective property rights of Plaintiffs-Appellees R.T. Faulk, III, Corey Farms, LLC, Faulk Farms, Inc., Joanne Hodges, River Valley Properties, McHenry F arms, LLC, Sherman Shaw, Mrs. T.P. Godwin, William P. Nadler, and McHenry Realty Part n e r s hip, and Defendant-Appellant Union Pacific Railroad.

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