     Case: 11-30315     Document: 00511654318          Page: 1    Date Filed: 11/03/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                             FILED
                                                                          November 3, 2011
                                       No. 11-30315
                                                                            Lyle W. Cayce
                                                                                 Clerk
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


        *
        Pursuant to Fifth Circuit 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not be published and is not precedent except under the limited circumstances set forth in Fifth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, 2008,1 and sets
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.”2


       1
         Section 48:394 was enacted on June 30, 2008, which is the date the district court used
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.”
       2
           The statute, in its current form, reads as follows:

                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 a written 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 regarding Section 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 against Louisiana
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).3 As we more fully
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


       3
         The terms “state sovereign immunity” and “Eleventh Amendment immunity” are
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 of immunity); 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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