IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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-Appellant Union Pacific Railroad Co. (“Union

Pacific”) appeals the district court’s grant of summary judgment in favor of

United States Court of Appeals

Fifth Circuit

F I L E D

November 3, 2011

Lyle W. Cayce

Clerk

Pursuant to FifthCircuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.4.

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Plaintiffs-Appellees the State of Louisiana 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

the constitutionality of Louisiana Revised Statute Section 48:394, and REMAND

in order for the district court to more fully develop the record regarding the

property interests at issue.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 22, 2007, Plaintiffs-Appellees R.T. Faulk, III, Corey Farms,

LLC, Faulk Farms, Inc., Joanne Hodges, River Valley Properties, McHenry

Farms, LLC, Sherman Shaw, Mrs. T.P. Godwin, William P. Nadler, and

McHenry Realty Partnership filed suit against Defendant-Appellant Union

Pacific in Louisiana state court, seeking declaratory and injunctive relief to

prevent Union Pacific from closing ten private railway crossings over an

approximately five-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 predecessors 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 plaintiffs claimed that the

closures would significantly burden them and impair 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 counterclaim against the plaintiffs,

seeking declaratory 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 judgment in January 2008, arguing that the plaintiffs had not

provided sufficient proof of their ownership of the land to establish their right

to the crossings. After the parties had briefed the issue, the case was stayed

pending the outcome of this Court’s decision in Franks Investment Co. v. Union

Pacific Railroad Co., 593 F.3d 404 (5th Cir. 2010) (en banc). Once this Court

issued its opinion in Franks, holding that a state-law action against a railroad

regarding use of private crossings was not preempted by federal 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,

codified at 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 removing 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 when it wishes to close a public

crossing. Originally, a railroad had to convince the LPSC that “closure or

removal” of the particular crossing was “necessary for safety and in the best

interests of the public.” 2008 La. Acts. 530, § 1. Based on this Court’s ruling in

Franks, the Louisiana Legislature amended Section 48:394 with Act 858 to

change the standard for closing a crossing to “unreasonably burdens or

substantially interferes with rail transportation.” 

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Section 48:394 was enacted on June 30, 2008, which is the date the district court used

1

in determining whether the statute applied to the closure of a private crossing, rather than

using the statute’s effective date. However, as the district court noted, “the record indicates

that no crossings were closed after this lawsuit was filed on January 22, 2007; therefore, the

effective date does not change the [district court’s] analysis or disposition of the claims in this

matter.”

 The statute, in its current form, reads as follows: 2

A. (1) Any railroad company operating in this state which

desires to close or remove a private crossing shall, no less

than one hundred eighty days prior to the proposed

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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

closing or removal, provide awritten request by registered

or certified mail to the Louisiana Public Service

Commission and to the owner or owners of record of the

private crossing traversed by the rail line. The written

request shall state the manner in which such private

railroad crossing unreasonably burdens or substantially

interferes with rail transportation.

(2) The Louisiana Public Service Commission shall

publish the written request from the railroad company in

the commission’s official bulletin for no less than

twenty-five days.

B. No private crossing shall be closed or removed by any railroad

company until after a public hearing by the Louisiana Public

Service Commission at which parties in interest have had an

opportunity to be heard. Notice of the time and place of the

hearing shall be published in the official journal of the parish and

the commission’s official bulletin and at least fifteen days shall

elapse between the publication and the date of the hearing. In

addition to notice by publication, and at least ten days prior to

the hearing, a good faith attempt to notify the owner or owners

of record of the property where the private crossing is located

shall be made by the commission by sending an official notice by

registered or certified mail of the time and place of the hearing

to the address or addresses indicated in the mortgage and

conveyance records of the parish. The public hearing shall be held

not less than sixty days after receipt of request of the railroad

company as provided in Subsection A of this Section.

C. If, after such public hearing, the commission determines that

the private railroad crossing unreasonably burdens or

substantially interferes with rail transportation, the commission

shall publish in the official journal of the parish where such

crossing is located and in the commission’s official bulletin a

notice stating the manner in which such closure or removal shall

be made and the date of such.

D. The provisions of this Section shall not apply when a private

landowner or landowners and a railroad company enter into a

consensual or negotiated written agreement or agreements to

close a private railroad crossing.

La. Rev. Stat. § 48:394. 

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Pacific’s counterclaim, asserting Section 48:394 as designating the appropriate

venue and procedure for resolving disputes over the removal of crossings. The

parties filed supplemental briefs on Union Pacific’s motion for summary

judgment, and on August 22, 2010, the district court issued its ruling. The

district court held that it did not need to rule on plaintiffs’ state property-law

claims as to crossings 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 railroad crossings must be

resolved, regardless of who owns the property.” As to crossings closed prior to

the enactment of Section 48:394, 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 to the private crossings. 

Plaintiffs who claimed to be owners, however, had raised genuine disputes of

material fact for trial.

In its ruling, the district court also stated its intent to grant summary

judgment sua sponte in favor of the plaintiff landowners on certain of their

requests for relief, while 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. The court

reserved for trial a ruling as to whether the crossing closures that occurred

before June 30, 2008 were improper.

The district court also gave notice 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 them within 30 days of the court’s

judgment. 

Finally, the district 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 Union Pacific’s request for declaratory relief. The district court also

indicated 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 indicating that the

plaintiffs would do so.

Union Pacific and the plaintiff landowners both filed briefs in response to

the district court’s ruling, and Union Pacific also filed a motion for

reconsideration. In addition, Union Pacific issued a summons to the Attorney

General of Louisiana because the railroad had filed a notice of constitutional

challenge regardingSection 48:394. Consequently, 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 Section 48:394, denying the railroad’s motion for reconsideration, and

enjoining Union Pacific from closing any of the plaintiffs’ existing crossings

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without authorization from the LPSC, pursuant to Section 48:394. The court

also dismissed with prejudice Union Pacific’s request for declaratory relief as to

any existing crossings, and its request for injunctive relief preventing the

plaintiffs from interfering with the closure of private crossings. In addition, the

district court dismissed without prejudice Union Pacific’s request for an

injunction preventing the plaintiffs from constructing more private 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 permitted an

interlocutory appeal to be taken from the order. See 28 U.S.C. § 1292(b). 

II. STANDARD OF REVIEW

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). Under that standard, summary

judgment is appropriate when “there is no genuine dispute 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 to the

nonmoving party. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225,

234 (5th Cir. 2010) (quoting Xtreme Lashes, 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. ANALYSIS

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:

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(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) Does the Act apply to the private railroad

crossings in this case?

The parties agree that the only issue on appeal is whether or not Section 48:394

authorizes a taking of Union Pacific’s private property without public purpose

in violation 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

Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 343 n.3 (5th Cir.

2002). The district court held that Section 48:394 does not permit an

unconstitutional taking under the Louisiana Constitution 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 takings 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

the Eleventh Amendment bars Union Pacific’s state-law claim againstLouisiana

and its officials. The private landowners 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 Cir. 2005). As we more fully 3

set out in our opinion also issued today in a companion case, Union Pacific

Railroad Co. v. Louisiana Public Service 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 voluntarily invoke

federal jurisdiction. See Atascadero 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 622 (“This Court

consistently has found a waiver when a State’s attorney general, authorized ...

to bring a case in federal court, has voluntarily 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, we must determine if the state

voluntarily invoked or submitted to federal jurisdiction through its conduct in

the district court.

Here, as Union Pacific argues, it is true that Louisiana voluntarily

intervened in the suit between the private landowners and the railroad. 

However, 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 [him],” 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 terms “state sovereign immunity” and “Eleventh Amendment immunity” are

3

often used interchangeably to mean the same thing. Benzing, 410 F.3d at 240, 251–52; see also

Watson v. Texas, 261 F.3d 436, 440 n.4 (5th 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 ofimmunity); Biomedical 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 jurisdiction and, thus,

waived its sovereign immunity for purposes of that lawsuit”). 

Furthermore, in its motion to intervene and its intervenor complaint, the

State expressly reserved its immunity: “The State does not hereby waive its

Eleventh Amendment sovereign immunity.” If forcing the State to intervene

could compel a waiver 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,

584 F.Supp.2d 1367, 1372 (S.D. Ga. 2008) (ruling there was no waiver of

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 litigation 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 Louisiana 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 extend to any suit 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

ownership rights over the rights-of-way at issue here. Therefore, the district

court “reserve[d] for trial the question of whether Union Pacific possesses

ownership rights in its rights of way, as there are genuine issues of material fact

that preclude judgment on this matter.” The 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) (quoting Lyng 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 at issue, 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

of private property capable of being taken. The district court recognized this

fact, writing that “[i]f Union Pacific does 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 that the 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

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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 question whether Union Pacific

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

the reasons discussed above, answering that question is also a necessary

precursor to any consideration of the statute’s relevance here and its

constitutionality. Accordingly, we decline 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 further vacate the district

court’s holding that Section 48:394 is constitutional, and 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 railroad crossings, the

record will be sufficiently developed at that time to permit a ruling regarding the

constitutionality of Section 48:394.

IV. CONCLUSION

For the foregoing reasons, we conclude that the State of 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 Farms, LLC, Sherman Shaw, Mrs. T.P. Godwin, William

P. Nadler, and McHenry Realty Partnership, and Defendant-Appellant Union

Pacific Railroad.

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