UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 01-30728

_______________________

ANTHONY L. VOGT, et al.

Plaintiffs-Appellants,

versus

BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT,

and JAMES HUEY,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana, New Orleans Division

_________________________________________________________________

June 14, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In 1984, the Louisiana legislature passed an act ordering

the Orleans Levee District to return land it had expropriated in

1924 to build a spillway. The levee district’s board of

commissioners, however, stalled the return of the property and have

until this day fought not to repay mineral royalties that belong to

the landowners. In this litigation, the levee district persuaded

the district court to dismiss the landowners’ constitutional

takings claim. We reverse. The district is not immune under the
2

Eleventh Amendment, and the landowners’ pleadings state a takings

claim.

I. BACKGROUND

The Orleans Levee District was created by the Louisiana

legislature in 1890 for the purpose of protecting the City of New

Orleans from floods. In 1924, the state legislature authorized the

levee district’s Board of Commissioners (“the levee board”) to

acquire 33,000 acres of land on the east bank of the Mississippi

River about 50 miles south of New Orleans in order to build the

Bohemia Spillway between the River and the Gulf of Mexico. 1924

La. Acts 99. Approximately half of this land was public property

transferred from the state; the other half was either expropriated

or purchased under threat of expropriation from private owners.

1928 La. Acts 246; 1942 La. Acts 311.

In 1984, the Louisiana legislature decided to return the

land taken for the Bohemia Spillway. Act 233 declared 

that the public and necessary purpose set forth in Act

No. 99 of 1924, which may have originally supported the

expropriation of property, or any right of ownership

thereto, on the east bank of the Mississippi River in the

parish of Plaquemines for the construction of a spillway,

known as the Bohemia Spillway, has ceased to exist

insofar as it ever may have affected the ownership of

property, including mineral rights. The Legislature of

Louisiana hereby orders the Board of Levee Commissioners

of the Orleans Levee District, the board, to return the

ownership of said property to the owners or their

successors from whom the property was acquired by

expropriation or by purchase under threat of

expropriation. 
3

1984 La. Acts 233; LA. CONST., art. VII, § 14(B). Act 233 also

directed the levee board to “provide a thorough accounting . . .

concerning all revenues received from the affected property.” The

Act was signed by the governor and went into effect on June 29,

1984. 

The levee board was reluctant to hand over the Bohemia

Spillway lands. The expropriated land had “proved to be useful for

more than just a spillway,” and by the mid-1980s, the levee

district was receiving about $3 million a year in mineral royalties

from the land the board had expropriated in 1924. Board of Levee

Commissioners of the Orleans Levee Dist. v. Huls, 852 F.2d 140, 141

(5th Cir. 1988). The levee board challenged the constitutionality

of Act 233, but both state and federal courts rejected the argument

that Act 233 was an unlawful taking of the levee district’s

property in violation of Article I, Section 4 of the Louisiana

Constitution as well as the Fifth and Fourteenth Amendments of the

United States Constitution. Board of Commissioners of the Orleans

Levee Dist. v. Dep’t of Natural Resources, 496 So.2d 281, 285 (La.

1986); Huls, 852 F.2d at 141-43.

Following these adverse judgments, the levee board issued

quitclaim deeds in 1991 and 1992, and title passed to the original

landowners or their successors. However, the levee board refused

to remit the mineral royalties that the levee district had received

between June 1984 and the time the land was returned. 
4

A group of 24 landowners then filed suit in state court

requesting (1) a declaratory judgment confirming their ownership of

the disputed mineral royalties, (2) an accounting of all mineral

royalties paid to the levee board after June 29, 1984, and (3) a

money judgment for the royalties that the levee board had not

repaid. The Louisiana Court of Appeals held, based on the clear

language of Act 233, that the levee board had no right to revenues

from the expropriated property after the effective date of Act 233.

Vogt v. Board of Levee Commissioners of the Orleans Levee Dist.,

680 So.2d 149, 157-59 (La. App. 4 Cir. 1996), writ denied, 684

So.2d 923. After an accounting, the Louisiana courts ordered the

levee board to reimburse the landowners for $2,853,358.44 in unpaid

mineral royalties. Vogt v. Board of Levee Commissioners of the

Orleans Levee Dist., 738 So.2d 1142 (La. App. 4 Cir. 1999), writ

denied, 748 So.2d 1166. 

The levee board has refused to satisfy this $2.85 million

judgment for unlawfully retaining the mineral royalties from 1984

to 1991-92. The landowners sought a writ of seizure, but Article

12, Section 10(C) of the Louisiana Constitution provides that

property of the state, a state agency, or political subdivision is

not subject to seizure. The landowners then sought a writ of

mandamus, but Louisiana courts have long held that a judgment
1 While this appeal was pending, the Louisiana Court of

Appeals affirmed the trial court’s orders denying the petitions for

writs of mandamus and seizure. Vogt v. Board of Levee

Commissioners of the Orleans Levee Dist., 814 So.2d 648 (La. App.

4 Cir. 2002)(“This court recognizes and sympathizes with

plaintiffs’ plight in getting a judgment against the State or

political subdivision satisfied. Nonetheless, this court is

without constitutional or statutory authority to compel the Levee

Board to pay the judgment rendered against it.”).

5

creditor may not use a writ of mandamus to force a political

subdivision to appropriate funds to pay the judgment.1

The landowners filed this action in federal court,

claiming that the levee board’s refusal to pay the judgment is an

unconstitutional taking of their property without just

compensation. The levee board now asserts that it is an “arm of

the state” and is thus entitled to Eleventh Amendment immunity. 

The district court concluded, based on “the weight of the

case law,” that the levee board is an arm of the state. The court

granted the levee board’s Rule 12(b) motion to dismiss for lack of

jurisdiction, and the landowners now appeal. The district court’s

determinations are reviewed de novo as questions of law, like other

questions of subject matter jurisdiction. United States v. Texas

Tech Univ., 171 F.3d 279, 288 (5th Cir. 1999). 

II. ELEVENTH AMENDMENT IMMUNITY

A

Federal court jurisdiction is limited by the Eleventh

Amendment and the principle of sovereign immunity that it embodies.

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct.
6

1114, 1122, 134 L.Ed.2d 252 (1996); Reickenbacker v. Foster, 274

F.3d 974, 976 (5th Cir. 2001). The “ultimate guarantee of the

Eleventh Amendment,” as the Supreme Court recently stated, is that

a non-consenting State may not be sued in federal court by private

individuals, including its own citizens. Board of Trustees of the

Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962,

148 L.Ed.2d 866 (2001). 

Even in cases where the State itself is not a named

defendant, the State’s Eleventh Amendment immunity will extend to

any state agency or other political entity that is deemed the

“alter ego” or an “arm” of the State. Regents of the Univ. of

California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 903-04, 137

L.Ed.2d 55 (1997). In other words, the Eleventh Amendment will bar

a suit if the defendant state agency is so closely connected to the

State that the State itself is “the real, substantial party in

interest.” Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th

Cir. 1999). The Eleventh Amendment will not bar a suit, though, if

the political entity “possesses an identity sufficiently distinct”

from that of the State. Pendergrass v. Greater New Orleans

Expressway Comm’n, 144 F.3d 342, 344 (5th Cir. 1998). 

There is no bright-line test for determining whether a

political entity is an “arm of the State” for purposes of Eleventh

Amendment immunity. Instead, “the matter is determined by reasoned

judgment about whether the lawsuit is one which, despite the

presence of a state agency as the nominal defendant, is effectively
2 The Supreme Court applied a different six-factor test in

a case involving a multi-state entity created pursuant to the

Compact Clause. Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401

(1979). In a later case, also involving a multi-state entity, the

Supreme Court focused primarily on the States’ liability for a

judgment against the entity. Hess v. Port Authority Trans-Hudson

Corp., 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). 

The Fifth Circuit has largely ignored Lake Country

Estates and has instead used a six-factor balancing test used for

determining whether a state agency is a “citizen” for purposes of

diversity jurisdiction. See Richardson v. Southern University, 118

F.3d 450, 452 n.8 (5th Cir. 1997). Moreover, the Fifth Circuit has

held that Lake Country Estates and Hess are not applicable where

the defendant is a single-state entity (as opposed to a multi-state

entity created pursuant to the Compact Clause). Pillsbury Co. v.

Port of Corpus Christi Auth. 66 F.3d 103, 104-05 (5th Cir. 1995).

The Supreme Court apparently does not believe that its precedents

are that limited. See Auer v. Robbins, 519 U.S. 452, 456 n.1, 117

S.Ct. 905, 908 n.1, 137 L.Ed.2d 79 (1997)(applying Lake Country

Estates and Hess to determine that the St. Louis Board of Police

Commissioners is not an arm of the State of Missouri). And other

7

against the sovereign state.” Earles v. State Board of Certified

Public Accountants of Louisiana, 139 F.3d 1033, 1037 (5th Cir.

1998). In making this inquiry, this circuit traditionally has

considered six factors: (1) whether state statutes and case law

characterize the agency as an arm of the state; (2) the source of

funds for the entity; (3) the degree of local autonomy the entity

enjoys; (4) whether the entity is concerned primarily with local,

as opposed to statewide, problems; (5) whether the entity has

authority to sue and be sued in its own name; and (6) whether the

entity has the right to hold and use property. See, e.g., Cozzo v.

Tangipahoa Parish Council-President Govt., 279 F.3d 273, 281 (5th

Cir. 2002); Anderson v. Red River Waterway Comm’n, 231 F.3d 211,

214 (5th Cir. 2000).2 “[T]he most significant factor in assessing
circuits that have squarely addressed the issue have concluded that

Lake Country Estates and Hess are “no less applicable” in cases

involving single-state entities created by state law. Gray v.

Laws, 51 F.3d 426, 432-33 (4th Cir. 1995); Mancuso v. New York

State Thruway Auth., 86 F.3d 289, 293 (2d Cir. 1996).

3 Two federal district court decisions specifically held

that the Orleans Levee District is an arm of the state. Lange v.

Orleans Levee District, 1998 WL 88862 (E.D. La. 1998); Stevens v.

Lopez, 1998 WL 13602 (E.D. La. 1998). For reasons discussed in the

body of this opinion, those cases were wrongly decided.

8

an entity’s status is whether a judgment against it will be paid

with state funds.” Delahoussaye v. City of New Iberia, 937 F.2d

144, 147-48 (5th Cir. 1991).

B

The district court did not discuss these six factors

because it concluded that prior decisions of the Fifth Circuit and

Louisiana Supreme Court “expressly identified the Levee Board as an

arm of the state.” However, the decisions cited by the district

court involved issues fundamentally different from the one

presented here.3

1

The district courts relied in part on the Louisiana

Supreme Court’s decision in Board of Commissioners of the Orleans

Levee Dist. v. Dep’t of Natural Resources, 496 So.2d 281, 288 (La.

1986)(holding that “the legislature’s divestiture of levee district

property does not constitute a taking of property by the state”).

While this decision provides a thorough discussion of the scope of

the state’s police power with respect to political subdivisions, it
4 Furthermore, whether a particular political entity is an

arm of the state is a question of federal law. See, e.g., Regents

of the Univ. of Calif. v. Doe, 519 U.S. 425, 429-30 n.5, 117 S.Ct.

900, 904 n.5, 137 L.Ed.2d 55 (1997). Even if Board of

Commissioners had asserted that the levee district is an arm of the

state, this court would not be bound by that pronouncement.

9

offers little, if any, support for the proposition that the Orleans

Levee District is an “arm of the state.”4

The levee board points out that Board of Commissioners

refers several times to the levee district as a “creature or agency

of the state”. Id. at 285, 289. Contrary to the levee board’s

assertions, however, calling the levee district a “creature or

agency of the state” does not necessarily mean that it is an “arm

of the state” within the meaning of Eleventh Amendment

jurisprudence. This point has been made repeatedly in our prior

decisions. See, e.g., Southwestern Bell Telephone Co. v. City of

El Paso, 243 F.3d 936, 939 (5th Cir. 2001); Earles, 139 F.3d at

1036; Richardson v. Southern Univ., 118 F.3d 450, 454 (5th Cir.

1997); McDonald v. Board of Mississippi Levee Commissioners, 832

F.2d 901, 906-07 (5th Cir. 1987)(“A reference to the Levee Board as

an ‘agency’ of the state by Mississippi courts does not amount to

a characterization of the Levee Board as an arm of the state.”);

Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 131 (5th Cir.

1986).

The principal reason for distinguishing between a

“creature or agency of the state” and an “arm of the state” is that
10

the former concept is far too inclusive to be useful for Eleventh

Amendment analysis. As the Supreme Court succinctly observed, 

[U]ltimate control of every state-created entity resides

with the State, for the State may destroy or reshape any

unit it creates. “[P]olitical subdivisions exist solely

at the whim and behest of their State,” yet cities and

counties do not enjoy Eleventh Amendment immunity.

Hess, 513 U.S. at 47, 115 S.Ct. at 404 (citations omitted).

On this same point, consider the Louisiana Supreme

Court’s explanation why the property held by the levee district

was, “to all practical intents and purposes,” still the property of

the State itself. Board of Commissioners, 496 So.2d at 288. After

determining that flood protection falls within the state’s police

power, then-Justice Dennis explained that

[t]he legislature may delegate, either expressly or

implicitly, the exercise of the police power to

subordinate boards, commissions or political

corporations. Such power, however, belongs to the state;

the police power may be exercised by agencies of the

state only under a delegation of authority. The state

retains the right to recall, abrogate or modify the

delegation. Consequently, the legislature’s prior

delegation of police power to its creature or agency, the

Orleans Levee District, authorizing it to levy taxes and

to acquire land by expropriation, purchase or donation to

build a spillway and maintain it for flood protection

purposes cannot prevent the state from recalling,

abridging or modifying this delegation of power. 

Id. at 289-90. The Court’s discussion of the State’s police power

with respect to its “creatures or agencies” makes no distinctions

among the subordinate political entities. That is to say,

departments within the executive branch, public universities,

parishes, sheriff’s departments, school boards, and municipalities
11

are all “creatures or agencies of the State.” All of these

entities exercise “a slice of state power,” and all are subject to

having their powers recalled, abridged, or modified by the state.

Southwestern Bell, 243 F.3d at 937-38, 939; Jacintoport Corp., 762

F.2d at 438. Nevertheless, many of these “creatures or agencies of

the State” indisputably are not protected by Eleventh Amendment

immunity and cannot be considered arms of the state.

2

The appellees make a similar mistake by relying on this

court’s decision in Board of Levee Commissioners of the Orleans

Levee Dist. v. Huls, 852 F.2d 140 (5th Cir. 1988). The issue in

Huls was “whether an agency of the state [the levee district] may

sue the state under the Fifth and Fourteenth Amendments for an

uncompensated taking of property.” Id. at 141. According to the

district court, Huls “expressly identified the Levee Board as an

arm of the state” and “held that the Levee Board was a state agency

that employed the power of the state to expropriate land and

therefore could not sue the state for an uncompensated taking of

property.” The district court’s interpretation of Huls conflates

two distinct categories: “agency of the state” and “arm of the

state”.

Huls, like Board of Commissioners, is predicated on the

traditional understanding of the state’s police power. The court

explained that “A political subdivision acts for the state. Its

power and its property come about only because it has the power of
12

the state.” Huls, 852 F.2d at 143. When the legislature revoked

the levee district’s authority to hold the Bohemia Spillway

property, the levee board (qua agent) had no legal right to

challenge the decision of the principal.

The focus in Huls is on “political subdivisions” or

“agencies of the state” -- categories which include political

entities that are beyond the purview of the Eleventh Amendment.

Tellingly, the panel in Huls considered itself bound by a Supreme

Court decision involving a municipality that sued a State:

Virtually the identical issue was raised in City of

Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct.

534, 67 L.Ed. 937 (1923). In that case, the city argued

that a state tax on the water the city took from the

Delaware River violated the contract clause and the due

process clause. The Court’s holding was clear and

unequivocal: those provisions of the Constitution “do not

apply against the state in favor of its own

municipalities.” Id. at 192, 43 S.Ct. at 538. City of

Trenton controls our decision. The [Levee] Board cannot

sue the state for an uncompensated taking of property.

Huls, 852 F.2d at 142. 

Huls did not hold that the levee board could not sue the

State of Louisiana because the levee district was an arm of the

state. Instead, Huls held that the levee board was a creature or

agency of the state, and, like other creatures of a state --

including municipalities -- the levee board could not prevent the

state, in the exercise of its police power, from revoking a prior

delegation of authority. As in Board of Commissioners, the levee

board’s status as an agency or creature of the state is not
13

determinative of the Eleventh Amendment question because many

“creatures or agencies” of the state, notably municipalities, are

not “arms of the state” for purposes of Eleventh Amendment

immunity. 

C

The issue here -- whether the Orleans Levee District is

an “arm of the state” for purposes of the Eleventh Amendment -- has

not yet been decided. We must “examine the particular entity . .

. and its powers and characteristics as created by state law to

determine whether the suit is in reality a suit against the state

itself.” Richardson, 118 F.3d at 452 (citations omitted). This

examination is guided by the six factors listed above. 

1

Characterization under state law. Louisiana statutes

define a “levee district” as a “political subdivision of this state

organized for the purpose and charged with the duty of constructing

and maintaining levees, and all other things incidental thereto

within its territorial limits.” La. Rev. Stat. Ann. § 38:281(6).

A “political subdivision” is defined as any parish, municipality,

“special district”, school board, sheriff, or “other public or

governmental body of any kind which is not a state agency.” La.

Rev. Stat. Ann. § 13:5102(B); see also Wynat Development Co. v.

Board of Levee Commissioners, 710 So.2d 783, 789-90 (1998) (stating
5 See Champagne, 188 F.3d at 313 (Louisiana Department of

Public Safety and Corrections); Earles, 139 F.3d at 1037 (State

Board of Certified Public Accountants, an agency within the

Department of Economic Development); Delahoussaye, 937 F.2d at 147

(University of Southwestern Louisiana, which was governed by the

State College and University System, an agency within the

Department of Education); Neuwirth v. Louisiana State Board of

Dentistry, 845 F.2d 553, 556 (5th Cir. 1988)(Board of Dentistry, an

agency within the Department of Health and Human Resources); Darlak

v. Bobear, 814 F.2d 1055, 1059 (5th Cir. 1987)(Charity Hospital of

New Orleans, which was governed by the Department of Health and

Human Resources); Voisin’s Oyster House v. Guidry, 799 F.2d 183,

186 (5th Cir. 1986)(Department of Wildlife and Fisheries);

Fireman’s Fund Ins. Co. v. Department of Transportation and

Development, 792 F.2d 1373, 1376 (5th Cir. 1986)(Department of

Transportation). 

14

that the Orleans Levee District is a “special district” within the

meaning of § 13:5102(B)).

The statutory classification of levee districts as

“political subdivisions” is significant. Our decision in Cozzo

suggests that “political subdivision” under § 13:5102(B) and “arm

of the state” are mutually exclusive. Cozzo, 279 F.3d at 281-82.

While this may not be a hard-and-fast rule, virtually every other

government entity classified as a political subdivision has been

denied Eleventh Amendment immunity, perhaps because political

subdivisions are more local in character. Hudson, 174 F.3d at 683-

84. Moreover, political subdivisions are not part of any

department within the executive branch of government. In every

recent case in which a Louisiana political entity has been held to

be an “arm of the state,” the state agency being sued was part of

a department within the executive branch.5 Our prior decisions

have gone so far as to suggest “that all Louisiana executive
15

departments have Eleventh Amendment immunity.” Champagne, 188 F.3d

at 313. But in this case, the levee districts are separate

political subdivisions and are not constituted as part of the

executive branch of government. 

Because the Louisiana Constitution and laws classify

levee districts as “political subdivisions,” which are usually

local governmental units with no connection to the executive branch

of government, the first factor points against Eleventh Amendment

immunity.

2

Source of the levee district’s funding. This second

factor is given the greatest weight because one of the principal

purposes of the Eleventh Amendment is to protect state treasuries.

Cozzo, 279 F.3d at 281; Jacintoport, 762 F.2d at 440. Although

this court traditionally uses the broad phrase “source of funding,”

our inquiry is more specific: “In assessing this second factor, we

conduct inquiries into, first and most importantly, the state’s

liability in the event there is a judgment against the defendant,

and second, the state liability for the defendant’s general debts

and obligations.” Hudson, 174 F.3d at 687. 

The state’s liability for a judgment is often measurable

by a state’s statutes regarding indemnification and assumption of

debts. In Hudson, the court focused on the same indemnification

provision that is applicable in this case. The statute defining
16

who is a state employee for purposes of indemnification

specifically excludes “an official, officer, or employee of a

municipality, ward, parish, special district, including without

limitation a levee district, school board, parish law enforcement

district, or any other political subdivision or local authority.”

La. Rev. Stat. Ann. § 13:5108.1(E)(3)(a); Hudson, 174 F.3d at 687-

88. And the Louisiana Constitution provides that “No judgment

against the state, a state agency, or a political subdivision shall

be exigible, payable, or paid except from funds appropriated

therefor by the legislature or by the political subdivision against

which the judgment is rendered.” La. Const. art 12, §

10(C)(emphasis added). Although the legislature has the authority

to appropriate funds to pay a judgment against a levee district,

the legislature certainly has no legal obligation to do so. Thus,

no legal liability arises against the state in the event of a

judgment against the levee district or its officers. On the other

hand, judgments against state agencies or departments within the

executive branch are treated as liabilities of the state itself.

See, e.g., Delahouysse, 937 F.2d at 148; Darlak, 814 F.2d at 1059;

Voisin’s Oyster House, 799 F.3d at 186-87.

The levee board acknowledges that the state has no duty

to pay a judgment against the levee district. The levee board has

suggested, though, that it could go to the legislature and request

that state money be appropriated to pay the judgment. This court
17

has consistently dismissed such arguments as too speculative for

Eleventh Amendment analysis: “[W]e do not consider ‘a state’s

voluntary, after-the-fact payment’ of a judgment to be a liability

against the state’s treasury.” Williams, 242 F.3d at 321 (quoting

Hudson, 174 F.3d at 689). We have left open the possibility that

a state entity could show that the legislature -- even where it is

not obliged to do so -- regularly appropriates money to pay

judgments against the entity. In this case, however, the levee

board can point only to an appropriation made in 1942 to reimburse

the levee district for expenses incurred when the Orleans Levee

District assumed the indebtedness of another levee district. This

argument falls far short of demonstrating the legislature’s de

facto recognition of liability for judgments against levee

districts.

The next step is to determine whether the state will

indirectly fund a judgment against the levee district because the

state either is responsible for general debts and obligations or

provides the lion’s share of the levee district’s budget.

The Louisiana Constitution provides that “The full faith

and credit of the state shall be pledged to the repayment of all

bonds and other evidences of indebtedness issued by the state

directly or through any state board, agency, or commission. . . .

The full faith and credit of the state is not hereby pledged to the

repayment of bonds of a levee district, political subdivision, or
18

local public agency.” La. Const. art 7, § 6. Therefore, while the

levee district has been granted the authority to issue bonds and

incur debts, those debts are not backed by the state.

See also Pendergrass, 144 F.3d at 345, 346. 

With regard to the more general question of the levee

district’s budget, the Orleans Levee District receives very little

funding from the state. The levee district generates its own

revenues from the Lakefront airport, a casino, leases of property,

fees from boatslips and marinas, and taxes. The district also

receives income from various investment accounts currently worth

$57 million. The levee board does not dispute these facts. At

oral argument, counsel for the levee board pointed out that the

district receives some state funds, even though they are usually in

the form of capital outlays dedicated to specific projects.

Because the state funds are already earmarked for other purposes,

the state monies cannot be used to pay a judgment against the levee

district. See Hudson, 174 F.3d at 688-89. 

The levee board further contends that the State of

Louisiana provides funds to the levee district indirectly, by

allowing the district to levy taxes on property within the

district. However, the levee district’s exercise of a delegated

power to tax does not speak to the question before us, namely,

whether a judgment against the levee district will be paid out of

the state treasury. See Williams, 242 F.3d at 320. 
19

To sum up: The second factor (source of funds) points

against Eleventh Amendment immunity. The Orleans Levee District is

almost entirely self-supporting, and the funds provided by the

State are earmarked for special projects. The levee district has

the authority to tax and issue bonds, although the state

specifically disclaims responsibility for any debts of the levee

district. Of greatest significance is that nothing in Louisiana

law, or in recent practice, suggests that the State has any

obligation with respect to judgments against the levee district.

3

Degree of local autonomy. “In our circuit, . . . the

determination of an agency’s autonomy requires analysis of the

‘extent of the [entity’s] independent management authority’ . . .

[as well as] the independence of the individual commissioners” who

govern the entity. Jacintoport, 762 F.2d at 442.

The Orleans Levee District has considerable “management

authority,” as that term has been applied in Fifth Circuit caselaw.

For example, the levee district is granted “full and exclusive

right, jurisdiction, power and authority” over all levee-related

matters within its territorial reach. La. Rev. Stat. Ann. §

38:307(A). Each levee district has the authority to issue bonds,

raise taxes (up to a certain rate), and make all contracts

necessary to perform their functions. La. Rev. Stat. Ann. §§

38:314, 38:335, 38:431, 38:401, 38:404, 38:306(A). The levee board
20

has the authority to sell, lease, or otherwise dispose of property

for the purpose of raising funds. La. Rev. Stat. Ann. § 38:336(A).

In carrying out these functions, the levee board operates

with no oversight from the executive branch of government. Cf.

Darlak, 814 F.2d at 1059-60 (emphasizing that the Charity Hospital

of New Orleans was “under the direct control of the executive

branch of government”). Furthermore, the state legislature

exercises no oversight with respect to the levee district’s

budgetary matters, except perhaps to the limited extent that the

district is subject to audits. See Williams, 242 F.3d at 321. On

the whole, however, no branch of state government exercises

“supervisory control” over the day-to-day operations of the levee

district, and that fact counsels against Eleventh Amendment

immunity here. McDonald, 832 F.2d at 907; see also Williams, 242

F.3d at 321-22; Minton, 803 F.2d at 131-32.

The levee board correctly points out, however, that six

of the eight commissioners serve at the pleasure of the Governor.

La. Rev. Stat. Ann. § 38.291(K). Although the “vulnerability of

the commissioners to the governor’s pleasure militates against a

finding of local autonomy,” Jacintoport, 762 F.2d at 442, in this

case, the governor’s discretion is limited by statutory

requirements that a commissioner must be a resident of the levee

district and recommended by the local legislative delegation. La.

Rev. Stat. Ann. § 38:304. This court stated in Pendergrass that

residency requirements and local nominations (along with fixed
21

terms, which are not present here) “tug[ged] strongly” in favor of

a finding of local autonomy, in spite of the governor’s role in the

appointment process. Pendergrass, 144 F.3d at 347. Moreover,

Jacintoport suggests that the appointment process is given less

weight than the scope of the entity’s authority over its day-to-day

activities. Jacintoport, 762 F.2d at 442. On balance, then, the

levee district’s considerable degree of local autonomy supports a

finding of no Eleventh Amendment immunity.

4

Local versus statewide problems. This factor “properly

centers on ‘whether the entity acts for the benefit and welfare of

the state as a whole or for the special advantage of local

inhabitants.’” Williams, 242 F.3d at 322 (quoting Pendergrass, 144

F.3d at 347).

Limited territorial boundaries suggest that an agency is

not an arm of the state. See, e.g., Cozzo, 279 F.3d at 282 (noting

that a sheriff’s duties are “generally performed only within a

single parish”); Hudson, 174 F.3d at 690-91 (“[W]e have found it

highly useful to examine the geographic reach of the district

attorney’s prosecutorial powers.”). The levee district’s powers,

considerable as they are, may be exercised only within clearly

defined territorial limits. La. Rev. Stat. Ann. § 38:281(6). On

the other hand, most entities that are entitled to Eleventh

Amendment immunity have statewide jurisdiction. See Earles, 139
22

F.3d at 1038 (“The Board is concerned with regulating the practice

of public accounting on a statewide, rather than a local, scale.

This factor favors Eleventh Amendment immunity for the Board.”);

Neuwirth, 845 F.2d at 556 (same for Board of Dentistry); Voisin’s

Oyster House, 799 F.2d at 187 (same for Department of Wildlife and

Fisheries).

The levee board’s counter-argument is that the levee

district is concerned with a statewide problem -- flooding -- and

that the nature of the problem outweighs the narrow geographic

boundaries of the levee district. However, primary education and

law enforcement are also statewide concerns, yet school boards and

sheriffs are not arms of the state. See Minton, 803 F.2d at 131-

32; Cozzo, 279 F.3d at 282. As a general principle, then, the “arm

of the state” analysis focuses on the tasks undertaken by the

particular defendant. An exception may apply where the regional

entity is an administrative division of a statewide system.

See Williams, 242 F.3d at 321-22 & n.10; Delahoussye, 937 F.2d at

148 (characterizing the University of Southwestern Louisiana as

“only one component of the State College and Universities System”).

But in this case, the 19 levee districts in the State of Louisiana

are distinct entities and are not parts of a larger system.

In a case involving a levee district in Mississippi, this

court observed, “While flood control along the Mississippi River is

undoubtedly important to the State of Mississippi, the problem of

immediate and primary concern to the Levee Board is the maintenance
23

of the levee within its district.” McDonald v. Board of

Mississippi Levee Commissioners, 832 F.2d 901, 908 (5th Cir. 1987).

The same may be said of the Orleans Levee District. The fourth

factor thus cuts against the levee district’s entitlement to

Eleventh Amendment immunity.

5

Authority to sue. Each levee district “may sue and be

sued under the style of Board of Commissioners for the respective

district.” La. Rev. Stat. Ann. § 38:309(B). The levee board

acknowledges the relevant statute but insists that the fifth factor

(along with the sixth factor) is accorded significantly less weight

than the others. See, e.g., Cozzo, 279 F.3d at 281.

6

Right to hold property. Louisiana statutes provide that

“Each board of commissioners may buy and hold, sell and transfer,

or exchange property.” La. Rev. Stat. Ann. §§ 38:306(A); see also

La. Rev. Stat. Ann. 38:307 (outlining the specific powers of the

Orleans Levee District). Nevertheless, the levee board insists

that its right to use and hold property is “limited.” The board

cites Huls for the proposition that all of its property ultimately

belongs to the state and that the levee district is merely

exercising a delegated power. This argument misses the point; the

relevant question is whether the levee district has the right to

hold property in its own name, and it clearly does. This final
6 In light of the resolution of this issue, we need not

address the landowners’ alternative argument that, even if the

levee district were considered an arm of the State, the Eleventh

Amendment would not bar their suit because the requested relief

could be characterized as a “purely prospective order” directing

the levee board to return the landowners’ property. 

24

factor -- like all of the others -- points away from Eleventh

Amendment immunity.

D

In sum, consideration of the six factors leads to the

conclusion that the Orleans Levee District is not an arm of the

State of Louisiana for purposes of Eleventh Amendment immunity.

The district court erred in dismissing the landowners’ action for

lack of jurisdiction.6

III. TAKINGS CLAIM

Since the district court had jurisdiction over this claim

against the levee board, the case must be reversed and remanded for

resolution on the merits. Although we express no opinion on the

ultimate outcome, a brief word is necessary to clarify a single

point discussed by both parties on appeal.

The levee board’s attorney began his presentation at oral

argument by saying, “I think it’s clear this is not a takings

case.” The levee board argued in its motion to dismiss and in its

brief on appeal that the landowners’ “property” -- in the form of

a judgment enforceable “through the processes set forth by the

legislature” -- has not been taken and that the landowners’

putative takings claim is nothing more than a suit to enforce a
7 This court has the discretionary authority to decide issues of law,

presented in the court below, where the relevant facts are uncontroverted and the

proper resolution of the issue is beyond doubt. Green v. Levi’s Motors, Inc.,

179 F.3d 286, 293 (5th Cir. 1999).

25

judgment against the board.7 If the landowners ultimately prevail,

the levee board continues, then every judgment creditor of a

political entity is a potential plaintiff in a takings claim.

The landowners, on the other hand, emphasize that the

right to receive mineral royalties is a recognized property

interest under Louisiana law and that there is no longer any doubt

as to ownership of the disputed royalties. As the state court

judgments made clear, the landowners’ interests in $2.85 million in

royalties were settled by the passage of Act 233, and their claims

for the property have since been reduced to judgment. Vogt, 680

So.2d at 158; Vogt, 738 So.2d at 1143-44. According to the

landowners, the levee board’s refusal to satisfy the judgment and

pay over the retained royalties constitutes a taking because the

governmental entity is withholding private property from its

owners, without offering compensation and without asserting a

public purpose or any police power or other reasonable regulatory

justification for the action. See Webb’s Fabulous Pharmacies, Inc.

v. Beckwith, 449 U.S. 155, 163-64, 101 S.Ct. 446, 452, 66 L.Ed.2d

358 (1980); NOWAK & ROTUNDA, CONSTITUTIONAL LAW, § 15:12. 

The only point requiring resolution at this stage is the

levee board’s insistence that the landowners’ suit is not a takings

claim but merely an attempt to execute the judgment of the state
26

courts. We find no support for the levee board’s premise that a

decree of the Louisiana courts somehow converted private property

(the mineral royalties) into public funds subject to an

unenforceable lien. Cf. Webb’s Fabulous Pharmacies, 449 U.S. at

163-64, 101 S.Ct. at 452 (“[A] State, by ipse dixit, may not

transform private property into public property without

compensation.”). In the levee board’s view, the state courts’

holding that the landowners’ judgment is unenforceable against the

levee board effectively re-characterizes their property right in

mineral royalties into an intangible claim against the levee

board’s property. Vogt, 814 So.2d 648. What was the landowners’

property has suddenly vanished behind a veil of sovereign immunity

in state court. We hold, however, that this result is untenable

against a federal takings claim.

We do not hold or imply, as the levee board contends,

that every tort or breach of contract claim against a governmental

entity necessarily becomes a takings claim. Our holding extends

only to cases where, as in Webb’s, the government has forcibly

appropriated private property without a claim of right or of public

or regulatory purpose. 

Having clarified this preliminary point of law, we

express no further opinion on the ultimate outcome of this case.
27

IV. CONCLUSION

For the foregoing reasons, the judgment of dismissal is

REVERSED and the case REMANDED for further proceedings consistent

herewith.

REVERSED and REMANDED.