State of North Carolina v. Alcoa Power Generating, Inc.
Filing
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ORDER DENYING 23 State of North Carolina's Motion to Remand, and in the alternative, for Abstention. Signed by US District Judge Terrence W. Boyle on 11/27/2013. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-633-BO
STATE OF NORTH CAROLINA, by and
through its agency, the NORTH
CAROLINA DEPARTMENT OF
ADMINISTRATION,
Plaintiff,
and
YADKIN RIVERKEEPER, INC.,
Plaintiff-Intervenor,
v.
ALCOA POWER GENERATING, INC.,
Defendant.
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ORDER
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This cause comes before the Court on the State's motion to remand. A hearing was held
on this matter before the undersigned on November 14, 2013, at Raleigh, North Carolina. For
the reasons discussed below, the State's motion is denied.
BACKGROUND
The State filed this declaratory judgment action in Wake County Superior Court seeking
a declaration that, inter alia, roughly thirty-eight miles of submerged riverbed in the Yadkin
River is the sole and exclusive property of the State ofNorth Carolina, held by the State in trust
for the people of the State. Alcoa Power Generating (Alcoa) removed the action to this Court on
the basis of its federal questionjurisdiction. 28 U.S.C. §§ 1331; 1441. The State contends that
its well-pleaded complaint contains no federal question. The State further contends that the
Eleventh Amendment would bar removal of this case from state court, and that, should the Court
find that it has jurisdiction to consider this matter, the Court should abstain as important state
interests have been implicated and there would be an adequate opportunity to present any federal
claims in the state court proceeding.
DISCUSSION
I.
REMAND IS NOT REQUIRED
Removal of a civil action from state court is only proper where the federal district courts
would have original jurisdiction, 28 U.S.C. § 1441, and it is the burden of the removing party to
show that jurisdiction lies in the federal court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816
(4th Cir. 2004) (en bane). Removal jurisdiction must be construed strictly in light of federalism
concerns, and if jurisdiction in the federal district court is determined to be doubtful, remand is
required. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Federal
district courts have original jurisdiction over "all civil actions arising under the Constitution,
laws, or treaties of the United States." 28 U.S.C. § 1331.
Generally, whether this Court has federal question jurisdiction "is governed by the 'wellpleaded complaint rule,' which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987). Even in the absence of a pleaded federal question,
however, a claim will be considered to arise under federal law "where the vindication of a right
under state law necessarily turn[s] on some construction of federal law." Franchise Tax Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983).
While there is no federal question presented on the face of the State's complaint, a
declaration of judgment under state law that the State ofNorth Carolina owns the portions of the
Yadkin River bed at issue necessarily turns on construction of federal law. As the State has
alleged in its complaint, in order to resolve the question of ownership, the question of whether
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the relevant portions of the riverbed were navigable at the time of statehood must first be
decided. Cmp.
~~
27-28.
It is undisputed that "when the revolution took place, the people of each state became
themselves sovereign; and in that character hold the absolute right to all their navigable waters,
and the soils under them .... " Martin v. Waddell's Lessee, 41 U.S. 367,410, 10 L. Ed. 997
(1842). Accordingly, as one of the original thirteen states, North Carolina held absolute right to
its navigable waters and the soils beneath them upon its declaration of independence from Great
Britain. What remains to be decided in this matter is whether the subject waterway was
navigable when the State declared its independence. As has been recently made plain,
"questions of navigability for determining state riverbed title are governed by federal law." PPL
Montana, LLC v. Montana, 132 S. Ct. 1215, 1227 (2012).
The State contends that the Supreme Court's holding in PPL Montana applies not to the
original thirteen but only to the later-admitted thirty-seven states whose ownership of navigable
waters is determined under the equal footing doctrine. The equal footing doctrine provides that
states newly admitted to the Union hold the same rights as sovereign to the submerged beds of
their navigable waterways as did the original thirteen. United States v. Alaska, 521 U.S. 1, 5
(1997) (citing Lessee of Pollard v. Hagan, 3 How. 212, 228-229 (1845)); see also Massachusetts
v. New York, 271 U.S. 65, 89 (1926) (principle derived from English common law that sovereign
holds title to soil under navigable waters is equally applicable to the original thirteen states and
states later admitted).
Because the later-admitted states are in fact co-equal sovereigns under the Constitution to the
original thirteen, see e.g. Pollard, 44 U.S. at 228, there is no basis upon which to suppose that
the equal footing doctrine requires any difference in treatment as between the states when
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deciding questions of navigability for determining riverbed title. That North Carolina is one of
the original thirteen as opposed to one of the thirty-seven non-original states subject to the equal
footing doctrine is thus of no consequence, as the question to be decided here remains, and
would be in either instance, whether the subject waterway was navigable when North Carolina
became sovereign.
Corvallis Sand does not require this Court to find otherwise. In Corvallis Sand, the Supreme
Court held that once title is vested in a state under the equal footing doctrine, "the force of that
doctrine [is] spent" and subsequent questions oftitle are then matters of state law. Oregon ex
rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 371 (1977). Here, the
question of whether title to the relevant portions of riverbed ever vested with the State remains to
be decided. Corvallis Sand is thus inapposite and does not require that state law be applied to
determine title. As to the State's reliance on an 1885 state statute regarding its ownership ofthe
Yadkin River bed, states "may [not] adopt a retroactive rule for determining navigability which
would [serve] to enlarge what actually passed to the State .... " PPL Montana, 132 S. Ct. at
1235.
As the State has not demonstrated that this Court's federal question jurisdiction is doubtful,
and because the State's action necessarily requires construction of federal law, removal ofthis
action was appropriate and remand is not required.
II.
THE ELEVENTH AMENDMENT IS NOT A BAR TO REMOVAL
The State next relies on the Eleventh Amendment to resist removal. While the Eleventh
Amendment protects states from being haled into court as defendants without their consent, "a
state that voluntarily brings suit as a plaintiff in state court cannot invoke the Eleventh
Amendment when the defendant seeks removal to a federal court of competent jurisdiction."
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California ex rei. Lockyer v. Dynegy, Inc., 375 F.3d 831, 844-48 (9th Cir. 2004) (thoroughly
discussing the intersection of state sovereign immunity and removal jurisdiction and listing cases
holding same); see also Com. ofVa. ex rei. Kilgore v. Bulgartabac Holding Grp., 360 F. Supp.2d
791, 796 (E.D.Va. 2005) (same).
While the Court is aware of no binding authority in this circuit reaching the same conclusion,
it is aware of nothing that would cause it to reach a contrary one. As noted by Alcoa, the State's
reliance on Idaho v. Coeur d'Alene Tribe ofIdaho, 521 U.S. 261 (1997), in arguing that the
Eleventh Amendment causes removal to be improper is misplaced; Coeur d'Alene is inapposite
here as the Supreme Court in that matter addressed itself to deciding whether the Eleventh
Amendment barred a federally recognized Indian tribe from bringing suit against a state, not
whether an action brought by a state may be removed to federal court. Thus, in light of the
persuasive authority from other circuits, the Court holds that the Eleventh Amendment cannot
operate to shield the State from a suit that it commenced in order to defeat Alcoa's proper
removal.
Ill.
YOUNGER ABSTENTION IS NOT APPROPRIATE
Finally, the State asks that if the Court finds that remand is not required that it abstain from
considering this matter under the principle announced in Younger v. Harris, 401 U.S. 37 (1971).
In order for Younger abstention to be appropriate, there must be an ongoing state judicial
proceeding, the proceeding must implicate important state interests, and there must be an
adequate opportunity to present the federal claims in the state proceeding. Employers Res.
Mgmt. Co., Inc. v. Shannon, 65 F.3d 1126, 1134 (4th Cir. 1995).
Where a case has been removed from state court, the state court has lost its jurisdiction over
the matter. Bryan v. Bel/South Communications, Inc., 492 F .3d 231, 240-41 (4th Cir. 2007).
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Thus, as there is no ongoing state judicial proceeding here, the first requirement of Younger fails
to be satisfied and abstention would be wholly inappropriate. See also Kilgore, 306 F. Supp.2d
at 797. The State's request that the Court abstain under Younger is denied.
CONCLUSION
For the foregoing reasons, the State's motion to remand and in the alternative for
abstention [DE 23] is DENIED.
SO ORDERED,
this~ i
day ofNovember, 2013.
T RRENCE W. BOYLE
UNITED STATES DISTRICT JU
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