                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 03-2135
                                ___________

Union Electric Company, doing         *
business as Ameren UE,                *
                                      *
        Plaintiff - Appellant,        *
                                      *
        v.                            *
                                      *
Missouri Department of Conservation; *
John D. Hoskins, in his official      *
capacity as Director of the Missouri  *
Department of Conservation;           *
Stephen C. Bradford, in his official  *
capacity as Commissioner of the       *   Appeal from the United States
Conservation Commission; Anita B.     *   District Court for the
Gorman, in her official capacity as   *   Western District of Missouri.
Commissioner of the Conservation      *
Commission; Cynthia Metcalfe, in her *
official capacity as Commissioner of  *
the Conservation Commission;          *
Howard L. Wood, in his official       *
capacity as Commissioner of           *
Conservation Commission,              *
                                      *
        Defendants - Appellees.       *
-----------------------------         *
State of Missouri; Missouri Clean     *
Water Commission,                     *
                                      *
        Amici on Behalf of Appellees. *
                                    ___________

                              Submitted: December 17, 2003

                                   Filed: April 9, 2004

                              Amended: April 30, 2004

                                    ___________

Before MELLOY, MCMILLIAN, and BOWMAN, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       This is a suit by AmerenUE, an electric utility, against the Missouri Department
of Conservation ("MDOC") and, in their official capacities, the director of MDOC
and four commissioners of the Missouri Conservation Commission. We affirm the
District Court's1 dismissal of the action as barred by the Eleventh Amendment.

       AmerenUE, which is licensed and regulated by the Federal Energy Regulatory
Commission, operates Bagnell Dam, a hydroelectric power plant on the Osage River.
It was the damming of the Osage River by Bagnell Dam that created the Lake of the
Ozarks. In the Spring of 2002, a significant fish kill occurred below the dam. The
parties agree that the fish kill occurred soon after the Army Corps of Engineers
released a substantial amount of water from the Harry S. Truman Dam, which is
upstream from Bagnell Dam. MDOC, believing the fish kill was preventable and was
caused by AmerenUE's negligence in failing to prevent it, demanded that AmerenUE
provide compensation for the alleged $3.256 million worth of fish that were
destroyed. When MDOC and AmerenUE were unable to agree on compensation for


      1
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.

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the lost fish, AmerenUE filed this suit in the District Court seeking a declaratory
judgment and an injunction. Specifically, AmerenUE sought a declaration that the
Federal Power Act, 16 U.S.C. §§ 791a–828c (2000), preempts MDOC from imposing
liability on AmerenUE for the dead fish and sought an injunction to prevent MDOC
from bringing any state-court or administrative actions to impose liability on the
company for the lost fish. After AmerenUE filed its federal action, MDOC filed suit
against AmerenUE in state court seeking precisely that relief, namely, damages for
the loss of the fish. Later, the Missouri Attorney General filed an application to
intervene in the federal case and requested that the case be dismissed on a number of
grounds, including the State's Eleventh Amendment immunity. Thereafter, without
ruling on the merits of the Attorney General's application to intervene, the District
Court granted judgment to all of the defendants on Eleventh Amendment grounds,
dismissed the case, and denied the application to intervene as moot. AmerenUE
appeals the dismissal of its suit. We review a district court's dismissal of an action
on Eleventh Amendment grounds de novo. Allen v. Purkett, 5 F.3d 1151, 1153 (8th
Cir. 1993) (per curiam), cert. denied, 513 U.S. 829 (1994).

       AmerenUE urges that under Ex Parte Young, 209 U.S. 123 (1908) (holding that
Eleventh Amendment does not bar suits for prospective injunctive relief against state
officials in their official capacity), its action against the individual defendants in their
official capacity is not barred by the Eleventh Amendment. The company also argues
that the defendants waived any Eleventh Amendment immunity the State enjoyed by
entering a general appearance in response to the lawsuit and, alternatively, that the
Attorney General waived the State's immunity by moving to intervene in the action.
We consider AmerenUE's claims seriatim.

       Our inquiry into whether the Ex Parte Young fiction avoids the Eleventh
Amendment's bar to suits against the States does not include an inquiry into the merits
of the claim. Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645
(2002). We may, however, inquire into whether an applicable federal statutory

                                            -3-
scheme evidences an implicit or explicit intent to exclude Ex Parte Young actions, id.
at 647, and we may also question whether the suit and the remedy it seeks
"implicate[] special sovereignty interests" such that an Ex Parte Young action will not
lie. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281 (1997).

       Here, we conclude that the Federal Power Act ("the Act") unmistakably
evidences an intent to exclude licensees such as AmerenUE from maintaining an Ex
Parte Young action seeking to prevent a State from recovering damages to its
property resulting from the licensee's negligence in the operation of the licensed
power project. Cf. Seminole Tribe, 517 U.S. 44, 74 (1996) (holding that existence
of a detailed remedial scheme shows Congressional intent to prohibit recourse to the
Ex Parte Young fiction). In relevant part, the Act provides:

      Each licensee hereunder shall be liable for all damages occasioned to the
      property of others by the construction, maintenance, or operation of the
      project works or of the works appurtenant or accessory thereto,
      constructed under the license and in no event shall the United States be
      liable therefor.

16 U.S.C. § 803(c) (2000). We have no occasion to consider whether this
provision—in combination with the rest of the statutory scheme—demonstrates
Congressional intent to exclude all Ex Parte Young actions under the Act. In the
circumstances of this case, it is clear that the Act bars AmerenUE's federal-court
action. Section 803(c) of the Act deals with licensee liability and is part of the Act's
remedial scheme, which relies on damage actions, by parties whose property is
injured by a licensee's operation of a licensed power project, to provide a remedy to
those whose property is so injured. The Act does not draw any distinction between
damage actions instituted by States and those instituted by private parties. The
remedy that AmerenUE seeks, which would enjoin the State from bringing or
maintaining an action to recover damages to its property allegedly caused by
AmerenUE's negligent operation of Bagnell Dam, is plainly inconsistent with the

                                          -4-
Act.2 Accordingly, the District Court's dismissal of the case on Eleventh Amendment
grounds was correct inasmuch as the Act itself forecloses application of the Ex Parte
Young exception to the State's assertion of Eleventh Amendment immunity. Because
the Ex Parte Young exception thus cannot successfully be invoked in this case, and
AmerenUE therefore cannot overcome the Eleventh Amendment bar to such an action
against these State defendants, there is no need for us to inquire whether this action
implicates any "special sovereignty interests" as in Coeur d'Alene, 521 U.S. at 281.

      AmerenUE urges that even if the Eleventh Amendment was initially available
to the defendants as a bar from suit, it was waived either by MDOC or by the
Attorney General. Specifically, AmerenUE contends that MDOC waived the State's
sovereign immunity when it made a general appearance and defended the suit on the
merits (MDOC did not raise its assertion of Eleventh Amendment immunity until its
motion-to-dismiss reply brief). Alternatively, AmerenUE argues that the State's
Eleventh Amendment immunity was waived when the Attorney General filed an
application to intervene and to dismiss the action.

       In support of its waiver claims, AmerenUE submits that our decision in
Hankins v. Finnel, 964 F.2d 853 (8th Cir.), cert. denied, 506 U.S. 1013 (1992), stands
for the proposition that whenever a State defendant makes a general appearance in
federal court and defends an action on the merits, it waives its Eleventh Amendment
immunity. We do not believe that Hankins can bear the weight AmerenUE places on
it. In Hankins, the State of Missouri defended a § 1983 suit brought in federal court
by a prisoner who sought damages from a state employee. Id. at 854–55. At trial, the
employee suffered an adverse judgment and was ordered to pay damages. The State

      2
       AmerenUE does not contest the proposition that the destroyed fish were the
property of the State of Missouri. See Mo. Rev. Stat. § 252.030 (2000) ("The
ownership of and title to all wildlife of and within the state, whether resident,
migratory or imported, dead or alive, are hereby declared to be in the state of
Missouri.").

                                         -5-
agreed to indemnify its employee pursuant to the "State Legal Expense Fund," see
Mo. Rev. Stat. § 105.711 (2000). Before it satisfied the judgment, the State sought
to recoup the judgment amount by instituting proceedings in state court under the
Missouri Incarceration Reimbursement Act, see id. §§ 217.825–841, which permits
the Attorney General to institute a suit seeking reimbursement for up to ninety percent
of the costs of a prisoner's confinement. Hankins, 964 F.2d at 854–55. After the state
court appointed a receiver to hold the funds, the inmate's account was debited for the
amount of the judgment plus interest and—that same day—the same amount was paid
into the inmate's account in satisfaction of the judgment. Id. Thereafter, the inmate
returned to federal court where he sought a writ of mandamus to stay the state court
proceedings and a writ "to proceed in aid of execution on the judgment," whereupon
the State asserted its Eleventh Amendment immunity from suit. Id. at 855. The
District Court held that the State had waived its Eleventh Amendment immunity and
enjoined the State from attaching the funds in the inmate's account. Id. The State
appealed this decision and we affirmed. In our decision, we noted that the State was
not a defendant in the underlying § 1983 suit and had not entered a general
appearance therein, but we nevertheless concluded that the State had waived its
Eleventh Amendment immunity with respect to actions in federal court arising from
the State's attempt to recover the amount paid into the inmate's account in satisfaction
of the judgment in the § 1983 case. Id. at 858. In short, it was the State's voluntary
act of paying the judgment, and then attempting to recoup the amount paid, that was
the basis of the waiver. Id. at 857–58. Hankins thus is a special case of limited
application and does not advance AmerenUE's waiver claim.

       The general rule regarding waiver, which was recently reiterated by the
Supreme Court, is that when a State voluntarily invokes federal jurisdiction "'and
submits its rights for judicial determination, it will be bound thereby and cannot
escape the result of its own voluntary act by invoking the prohibitions of the Eleventh
Amendment.'" Lapides v. Bd. of Regents, 535 U.S. 613, 619 (2002) (quoting Gunter
v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906)). Thus, a State's Eleventh

                                          -6-
Amendment immunity may be waived if a state actor with the power to bring suit in
federal court invokes federal jurisdiction in a clear and voluntary manner. Id. at
619–22. In Lapides, these criteria were satisfied because the Georgia Attorney
General was authorized by state statute "'[t]o represent the state in all civil actions
tried in any court,'" id. at 621 (quoting Ga. Code Ann. § 45-15-3(6) (1990)), and the
invocation of federal jurisdiction was clear and voluntary because the Attorney
General chose to remove the case from state court, where it originated. In contrast,
the elements required to show clear and voluntary action constituting a waiver of
Eleventh Amendment immunity by a State defendant are absent here.

       Regarding MDOC, AmerenUE has not demonstrated that MDOC has the power
to bring suit in federal court. Having this power is, under Lapides, a prerequisite for
a state actor to have the ability to waive the State's Eleventh Amendment immunity.
Even if MDOC has this power, it is clear that MDOC, which is a defendant in this
lawsuit, has not voluntarily invoked federal jurisdiction by entering a general
appearance and defending against AmerenUE's suit. See, e.g., Fromm v. Comm'n of
Veterans Affairs, 220 F.3d 887, 888–90 (8th Cir. 2000) (en banc) (holding that there
was no waiver where attorney general appeared in federal court, answered a
complaint, responded to discovery, and later moved to amend its answer to the
complaint in order to raise State's Eleventh Amendment immunity). Moreover,
MDOC did assert the State's Eleventh Amendment immunity in the dismissal
proceedings and it has continued to press its claim of entitlement to such immunity.
As for the Missouri Attorney General, state law authorizes him to "institute, in the
name and on the behalf of the state, all civil suits and other proceedings at law or in
equity . . . ." Mo. Rev. Stat. § 27.060 (2000); see also Mo. Const. art IV, § 12
(establishing office of Attorney General). With this power, the Attorney General
could waive the State's Eleventh Amendment immunity if he invoked federal
jurisdiction in a clear and voluntary manner. Cf. Beatty v. Metro. St. Louis Sewer
Dist., 914 S.W.2d 791, 796 (Mo. 1995) (noting that State's sovereign immunity may
be waived by voluntary appearance and submission to jurisdiction). As we already

                                         -7-
have noted, the State is a defendant and, consequently, has not voluntarily invoked
this court's jurisdiction. AmerenUE's effort to cast the Attorney General's application
to intervene in this case as a voluntary invocation of federal jurisdiction is fruitless:
the State, because of AmerenUE's suit against MDOC and the individual State
officials in their official capacity, was already a party-defendant, and the Attorney
General's application to intervene does not change this fact.3 Moreover, a stated aim
of the application was to enable the Attorney General to argue for dismissal of the
case on, inter alia, Eleventh Amendment grounds. We are thoroughly satisfied that
no waiver of the State's Eleventh Amendment immunity occurred.

       We conclude that the District Court did not err when it dismissed this suit as
barred by the Eleventh Amendment. For the reasons stated, the judgment of the
District Court dismissing this action is affirmed.
                       ______________________________




      3
       Our conclusion that the State was already a party to the action when the
Attorney General moved to intervene necessarily means we reject AmerenUE's claim
that MDOC is not an arm of the State of Missouri for Eleventh Amendment purposes.

                                          -8-
