11th Amendment Protects States From Federal Takings Claims

Friday, May 25, 2018 9:57 am
June 2018 - Volume 46 Number 6

You cannot bring a reverse condemnation claim against a state official in his official capacity in federal court.

Facts: In 1991, Seven Up Pete Venture (Seven Up) acquired six mineral leases in property owned by the State of Montana for the purpose of mining gold and silver. Seven Up discussed the project’s viability and potential environmental impact with Montana. Seven Up never received permits to mine or start mining.

In 1998, Montana passed a ballot initiative banning open-pit mining using cyanide heap leaching, which is now codified at Mont. Code Ann. § 82-4-390. Because Seven Up claimed that open-pit mining using cyanide heap leaching was the only mining method feasible on the leased land, the Montana Department of Environmental Quality (the DEQ) stopped reviewing Seven Up’s pending mining pit application. The Montana Department of Natural Resources and Conservation later told Seven Up that the six leases had expired by their terms because Seven Up had failed to “diligently pursue acquisition of a permit under Montana’s Metal Mine Reclamation Act.” Seven Up Pete Venture v. State, 114 P.3d 1009, 1015 (Mont. 2005).

In 2000, Seven Up filed complaints in federal and state courts against Montana Governor Brian Schweitzer and DEQ Director Richard Opper. The federal complaint alleged [..]