ELR Citation: ELR 20123
No(s). 91-35183 (9th Cir. Dec 2, 1992)

The court holds that, by the terms of the Columbia River Gorge National Scenic Area Act, federal district courts lack jurisdiction under the Eleventh Amendment to hear a lumber company's inverse condemnation claim against the states of Oregon and Washington. The court first holds that although the Eleventh Amendment is not an absolute bar to suits against states in federal courts, Congress did not clearly provide that states joining the Columbia River Gorge Compact (Compact) waive their sovereign immunity. The enactment provision of the Compact does not constitute an unmistakably clear statement of Congress' intent to abrogate Oregon and Washington's Eleventh Amendment immunity from suit in federal court. Moreover, the Columbia River Gorge Commission's (Commission) waiver of sovereign immunity in the state courts does not act as a waiver of Eleventh Amendment immunity in the federal courts. The court next holds that federal district courts lack subject matter jurisdiction over this declaratory judgment action. Although §544m(b)(4) of the Act might be read to vest jurisdiction over all appeals in the federal district courts of Oregon and Washington, subparagraphs (5)(C) and (6)(C) lead the court to conclude that the state courts have exclusive jurisdiction over actions involving, and appeals from, the Commission, while federal courts' jurisdiction is reserved for actions involving and appeals from the secretary of the U.S. Department of Agriculture. In addition, congressional commentary supports limiting the federal courts' jurisdiction to actions involving the secretary. Finally, the court holds that the company's inverse condemnation action is unripe for judicial review, because the company sought relief in federal court before first attempting to gain relief from the states through their procedures for seeking compensation. The company did not demonstrate the inadequacy of the states' compensatory procedures and failed to seek compensation from Oregon or Washington prior to filing its suit in federal court.

Counsel for Appellant
Michael E. Haglund, Kathleen A. Pool
Haglund & Kirtley
One Main Pl., 100 S.W. Main, Ste. 700, Portland OR 97204
(503) 225-0777

Counsel for Appellee
Lawrence Watters
P.O. Box 730, White Salmon WA 98672
(509) 493-3323

Crocker, J.^* (before Wallace and Goodwin, JJ.)