                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 12 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

UNITED SPECIALTY INSURANCE                       No. 17-35899
COMPANY, a Delaware corporation,
                                                 D.C. No. 3:17-cv-00330-AC
              Plaintiff-Appellee,

 v.                                              MEMORANDUM*

CLAY JONAK, an Oregon resident
(Default entered 5/15/17); ROGER ISON,
an Oregon resident (Default entered
5/15/17),

              Defendants,

  v.

STATE OF OREGON, acting by and
through its Department of State Land,

              Intervenor-Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Anna J. Brown, Senior District Judge, Presiding




       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             Submitted March 8, 2019**
                                 Portland, Oregon

Before: GRABER and BERZON, Circuit Judges, and ROBRENO,*** District
Judge.

      Intervenor-Appellant the State of Oregon ("the State") moved to intervene in

this action between Plaintiff United Specialty Insurance and Defendants Clay

Jonak and Roger Ison. Plaintiff sought rescission, avoidance, or reformation of a

pollution insurance policy that it had issued to Defendants, who were leasing land

from the State under a lease that required them to obtain and maintain such

insurance. The State filed a Motion to Intervene but did not raise the issue of

sovereign immunity until its supplemental briefing, which it filed after oral

argument on the Motion to Intervene. The district court ruled that the State was a

necessary party and that the State had waived its sovereign immunity. The State

now appeals that order. On de novo review, Coal. to Defend Affirmative Action v.

Brown, 674 F.3d 1128, 1133 (9th Cir. 2012), we affirm.1


      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
      ***
         The Honorable Eduardo C. Robreno, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
      1
         We have jurisdiction over a ruling that denies Eleventh Amendment
immunity from suit to a State. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 147 (1993).
                                          2
      A state’s immunity from suit is not absolute; a state may consent to suit in

federal court. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 675 (1999). The "test for determining whether a State has waived its

immunity from federal-court jurisdiction is a stringent one." Id. (quoting

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded by

statute on other grounds as stated in Lane v. Pena, 518 U.S. 187, 197–200 (1996)).

The Court generally "find[s] a waiver either if the State voluntarily invokes

[federal court] jurisdiction or else if the State makes a ‘clear declaration’ that it

intends to submit itself to [the Court’s] jurisdiction." Id. at 675–76 (citations

omitted).

      We have emphasized that there is

      no valid reason why a party should belatedly be permitted to assert
      Eleventh Amendment immunity. A party knows whether it purports
      to be an "arm of the state," and is capable of disclosing early in the
      proceedings whether it objects to having the matter heard in federal
      court. . . . Requiring the prompt assertion of an Eleventh Amendment
      defense also minimizes the opportunity for improper manipulation of
      the judicial process.

Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 757–58 (9th Cir. 1999). And

"a state may waive its Eleventh Amendment immunity by conduct that is

incompatible with an intent to preserve that immunity." Id. at 758; see also

Fordyce v. City of Seattle, 55 F.3d 436, 441 (9th Cir. 1995) (holding that a state


                                            3
"waive[s its] Eleventh Amendment protection by voluntarily appearing and

defending on the merits" if the state "has been adequately notified of the pendency

of the suit and of the particular matters at issue").

      Here, the State voluntarily sought status as a party in the federal action. The

State’s motion argued that the State

      seeks to protect its interests in the state owned submerged and
      submersible land at issue in the action and to protect its interests
      arising under its lease with [D]efendants . . . . Plaintiff’s action will
      impair the State of Oregon’s interests, and Defendants have failed to
      protect those interests. For these reasons, the [district court] should
      allow the State of Oregon to intervene in this lawsuit.

(Emphasis added.) Indeed, in arguing for status as a party in this action, the State

asserted an affirmative desire to litigate substantive issues: "The State of Oregon’s

interest in asserting its claim for coverage under Plaintiff’s insurance policy cannot

be adequately protected by the existing parties. . . . The State of Oregon’s rights

and interests may be impaired if it is not allowed to pursue its claim in the present

case . . . ." (Emphasis added.) Nothing in the State’s motion suggested that the

State sought to intervene for a limited purpose, nor did it argue that it was entitled

to dismissal, nor did it enter a special appearance. In short, the State’s affirmative

conduct was wholly incompatible with a claim of sovereign immunity, and its

attempt to assert immunity came too late.

      AFFIRMED.

                                            4
