IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30872

Summary Calendar

RICHARD SHANE RUSH; BETTY H. RUSH; COMITE DIRT PIT, 

INCORPORATED, 

 Plaintiffs - Appellants

v.

ROBERT J. BARHAM, 

 Defendant - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:13-CV-723

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants appeal the dismissal of their 42 U.S.C. § 1983 

claims against the Secretary of the Louisiana Department of Wildlife and 

Fisheries. The district court dismissed all claims for lack of subject matter 

jurisdiction. We affirm.

 

* Pursuant to 5TH CIR. R. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2015

Lyle W. Cayce

Clerk

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I. Factual and Procedural Background

Plaintiffs Richard and Betty Rush are the owners of Comite Dirt Pit, Inc. 

(“CDP”). CDP owns a tract of land along the bank of the Comite River in East 

Baton Rouge Parish, Louisiana. CDP has farmed, logged and dirt-mined the 

property since at least 1983. Beginning more recently, CDP has charged a fee 

for recreational ATV access to the Comite River and dirt mounds on the 

property. 

Defendant Robert Barham is Secretary of the Louisiana Department of 

Wildlife and Fisheries (“LDWF”). One of the statutes enforced by LDWF is the 

Louisiana Scenic Rivers Act (“LSRA”). La. Rev. Stat. 56:1843. The LSRA 

contains restrictions and permitting requirements applicable to the rivers 

specified in the Act. See generally La. Rev. Stat. 56:1840, et seq. The Comite 

River is designated a scenic river by the LSRA. La. Rev. Stat. 56:1847(8). 

Beginning in 2009, LDWF served multiple orders and citations on CDP and/or 

its owners, determining that mining and logging on the property within 100 

feet of the Comite River without a permit violated the LSRA and ordering that 

such activities cease. On June 19, 2009, LDWF filed an action for injunctive 

and declaratory relief in state court against CDP based on alleged continuing 

violations of the LSRA. The state court issued a temporary restraining order 

(“TRO”) restraining CDP from mining activities or removing trees in the areas 

in question. On July 1, 2009, CDP and LDWF voluntarily entered into an order 

specifying that the terms of the TRO were “continued indefinitely by both 

parties.” In March 2010, LDWF instituted additional proceedings in the state 

court against CDP based on alleged violations of the 2009 order. Subsequently, 

in lieu of conducting a hearing, the parties again voluntarily agreed that the 

terms of the TRO and the 2009 order were “continued indefinitely by both 

parties.” 

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In July 2013, the Plaintiffs sought to set aside both the 2009 and 2010 

state court orders, to which they had previously consented. According to the 

Plaintiffs’ complaint, this matter remains pending in the state court. In 

November 2013, the Plaintiffs filed the instant lawsuit in the Middle District 

of Louisiana under 42 U.S.C. §1983 alleging that restrictions on the use of their 

property near the river violate due process, the Takings Clause and the Tenth 

Amendment. The Plaintiffs named Barham as the sole defendant in the suit. 

In December 2013, the district court denied the Plaintiffs’ request for a TRO. 

Barham then filed a motion to dismiss the Plaintiffs’ suit. The district court 

granted the motion and dismissed all claims for lack of subject matter 

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs 

appeal.

II. Discussion

Plaintiffs’ Amended Complaint seeks damages for lost profits, punitive 

damages, declaratory relief, and injunctive relief prohibiting interference with 

their property. The district court dismissed all claims under Rule 12(b)(1), 

holding that Barham is immune from claims for damages under § 1983 

pursuant to the Eleventh Amendment, and that the claims for injunctive and 

declaratory relief are unripe for adjudication. 

We review the district court’s dismissal for lack of subject matter 

jurisdiction pursuant to Rule 12(b)(1) de novo. In re FEMA Trailer 

Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir. 

2012). “Under Rule 12(b)(l), a claim is properly dismissed for lack of subject 

matter jurisdiction when the court lacks the statutory or constitutional power 

to adjudicate the claim.” Id. (internal quotation marks omitted) (quoting Home 

Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). 

“Lack of subject-matter jurisdiction may be found in the complaint alone, the 

complaint supplemented by the undisputed facts as evidenced in the record, or 

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the complaint supplemented by the undisputed facts plus the court’s resolution 

of the disputed facts.” Id. at 287.

A. Sovereign Immunity

The district court dismissed all claims for damages pursuant to Eleventh 

Amendment sovereign immunity. Absent a state’s waiver of sovereign 

immunity, “a suit by private parties seeking to impose a liability which must 

be paid from public funds in the state treasury is barred by the Eleventh 

Amendment.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). “When the action 

is in essence one for the recovery of money from the state, the state is the real, 

substantial party in interest and is entitled to invoke its sovereign immunity 

from suit even though individual officials are nominal defendants.” Id.

(quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945)). 

The district court concluded that although Secretary Barham is the nominal 

defendant in the instant suit, the Plaintiffs’ damages claims are essentially 

claims for recovery of money from the state of Louisiana and are therefore 

barred.

On appeal, the Plaintiffs-Appellants’ arguments regarding sovereign 

immunity do not directly address the district court’s clear reasoning for 

dismissing the damages claims. The Plaintiffs restate a long litany of LDWF’s 

alleged failures to follow state-law administrative procedures and allege that 

the Comite River is privately owned and not subject to the LSRA. However, 

they do not ever dispute or respond directly to the district court’s conclusion 

that their damages claims essentially seek recovery of money from the state 

and that Louisiana is therefore the “real substantial party in interest” in this 

suit. Id. As the district court noted, all of the alleged violations described by 

the Plaintiffs relate to administrative agency actions taken by LDWF pursuant 

to its enforcement authority. It is clear that the claims seek damages caused 

by LDWF enforcement actions, and thus in effect seek recovery of money from 

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the state. We conclude that the district court correctly dismissed all claims for 

damages pursuant to Eleventh Amendment sovereign immunity. 

B. Ripeness

The district court dismissed the remaining claims for declaratory and 

injunctive relief because they were not ripe for adjudication. Ripeness is an 

Article III jurisdictional issue pertaining to “whether the suit is being brought 

at the proper time.” Texas v. United States, 497 F.3d 491, 496 (5th Cir. 2007). 

“A court should dismiss a case for lack of ‘ripeness’ when the case is abstract 

or hypothetical.” New Orleans Pub. Serv., Inc. v. Council of City of New 

Orleans, 833 F.2d 583, 586 (5th Cir. 1987) (citing Thomas v. Union Carbide 

Agricultural Products Co., 473 U.S. 568, 580 (1985); Socialist Labor Party v. 

Gilligan, 406 U.S. 583, 588-89 (1972)). “The key considerations are ‘the fitness 

of the issues for judicial decision and the hardship to the parties of withholding 

court consideration.’” Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 

136, 149 (1967); Placid Oil Co. v. Fed. Energy Regulatory Comm’n, 666 F.2d 

976, 981 (5th Cir. 1982)). “A case is generally ripe if any remaining questions 

are purely legal ones; conversely, a case is not ripe if further factual 

development is required.” Id. (citing Thomas, 473 U.S. at 580).

Regarding the first prong of the ripeness analysis, the district court 

concluded that the issues in this suit are not fit for judicial consideration 

because further factual development is required to adjudicate the Plaintiffs’ 

claims. We agree. In this suit, Plaintiffs claim that their property is not 

subject to the LSRA and that LDWF has engaged in enforcement proceedings 

not authorized by state law, which deprived them of due process and of 

property rights. However, many issues directly relevant to these claims are 

still pending in the Louisiana state court action wherein the Plaintiffs 

currently seek to set aside the 2009 and 2010 consent orders by challenging 

LDWF’s authority and the procedures it followed. Thus, as the district court 

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noted, further fact findings relating to the issues in this suit “will necessarily 

result from the state proceedings.” For example, one of the Plaintiffs’ primary 

grievances is that they were not given a hearing relating to LDWF’s regulation 

of their property, yet they admit that the proceedings are ongoing in the state 

court. Other claims by the Plaintiffs may be contingent on whether the 2009 

and 2010 consent orders—in which the Plaintiffs agreed to LDWF’s authority 

and to take or refrain from certain actions pursuant to the LSRA—are set aside 

by the state court. There may be no basis for the federal constitutional claims 

unless the consent orders are nullified; at the very least, it is necessary to know 

the state court’s resolution of the matter before those claims can be 

adjudicated. 

No authority cited by Plaintiffs supports their assertion that the district 

court erred in resolving the ripeness issue. Plaintiffs rely on Simi Investment 

Company, Inc. v. Harris, 236 F.3d 240, 247-48 (5th Cir. 2000), to argue that 

substantive due process claims are not subject to an exhaustion requirement. 

The exhaustion discussion in Simi is inapposite. Plaintiffs confuse ripeness 

with exhaustion. The district court did not hold that the claims Plaintiffs 

assert are subject to an exhaustion requirement. The court held that in the 

circumstances of this particular case, further factual development will result 

from the pending state court proceeding and will necessarily affect the claims 

in this suit, and thus that the federal constitutional claims are not fit for 

judicial review. Plaintiffs’ reliance on Sackett v. E.P.A., 132 S. Ct. 1367 (2012),

is similarly misplaced. Sackett is an APA case which addressed whether a 

particular action by the EPA was a “final agency action” within the meaning 

of that statute. Id. at 1371-72. By contrast, the Plaintiffs seek to bring federal 

constitutional claims via § 1983 against a state agency official. State agencies 

are not, of course, subject to the requirements of the federal APA, see 5 U.S.C. 

§ 701, and claims that a state agency’s or official’s actions violate the 

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Constitution are markedly different than claims that a federal agency failed to 

follow the prescribed APA procedures. The language of “finality” may

sometimes be similar, but here the specific question is not the finality of the 

LDWF actions according to APA standards, but whether the facts forming the 

basis of Plaintiffs’ claims are sufficiently developed so as to allow review of 

their claims. We agree with the district court that they are not.

With regard to the second prong of the ripeness analysis, the hardship 

to the parties of withholding review, see New Orleans Pub. Serv., Inc., 833 F.2d 

at 586, we again agree with the district court that the Plaintiffs cannot point 

to any hardship resulting from withholding judicial consideration at this stage. 

A Louisiana forum is already available to determine the propriety of LDWF’s 

actions under Louisiana law. The burdens to all parties would only increase 

should a federal court conduct parallel proceedings involving some of the same 

underlying issues as are in dispute in the state court proceeding.

Thus, the district court correctly determined that both the fitness and 

hardship prongs of the ripeness analysis indicate that Plaintiffs’ action is 

premature and should be dismissed.

III. Conclusion

For the foregoing reasons, the district court’s dismissal of all the claims 

is AFFIRMED.

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