ELR Citation: ELR 21538
No(s). 91-6145 (5th Cir. Oct 14, 1992)

The court vacates a district court decision which held that a state-imposed public easement over private beachfront property is not a compensable taking and that the risk that some property would be lost to the sea was assumed at purchase. The circuit court holds that the Eleventh Amendment bars the landowners' suit, because it bars suits against a state by citizens of that state. Following the U.S. Supreme Court's decision in Ex Parte Young, which provides that the Eleventh Amendment does not bar suits for injunctive relief against state officials, the court holds that the landowners could sue the attorney general; however, for extraordinary reasons only partially evident from the record, the district court judge sua sponte had ordered that the state be named as defendant instead of the attorney general. The court holds that the landowners waived their objection to the substitution of the state as the defendant. The court observes that it was counsel's responsibility to make a proper objection, even at the risk of incurring the court's wrath. The court thus does not reach the merits of the Fifth Amendment taking claim.

[The district court's decision is published at 22 ELR 20644.]

Counsel are listed at 22 ELR 20644.

Before KING, WILLIAMS, and SMITH, Circuit Judges.