Lead Opinion
{1} Plaintiffs, owners of a mining property in southwestern New Mexico, claim their land interest has been effectively “taken” from them through application of state mining regulations without the payment of just compensation. They also argue that the State has impaired their contractual obligations in violation of the Contracts Clause. The Court of Appeals held that Plaintiffs’ compensatory claims against two state regulatory agencies are barred by state constitutional sovereign immunity. We granted certiorari to address an issue of first impression: whether state constitutional sovereign immunity bars the rights and remedies found in the Takings Clause and the Contracts Clause of the United States Constitution when those rights and remedies are asserted against a state agency. Concluding that such claims are barred under the Contracts Clause, but not the Takings Clause, we affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
{2} Plaintiffs, the Manning family,
{3} Then, in 1993, prior to the mine being reopened, the State passed the New Mexico Mining Act (the “Mining Act”). NMSA1978, §§ 69-36-1 to -20 (1993, as amended through 2001). The Mining Act increases mining regulation to “promot[e] responsible utilization and reclamation of lands affected by exploration, mining or the extraction of minerals.” Section 69-36-2. The New Mexico Mining and Minerals Division of the Energy, Minerals, and Natural Resources Department and the New Mexico Environment Department (the “State agencies”) are the agencies responsible for enforcing the Mining Act. See § 69-36-14.
{4} The Mannings have a long, litigious history regarding the application of the Mining Act to their property. In this lawsuit the Mannings claim they cannot determine the bonding and reclamation requirements for the mine unless they are allowed to operate, and yet state regulations will not allow them to operate without first meeting reclamation requirements. Thus, the Mannings argue that the State agencies have effectively taken their property, making it impossible to mine, without justly compensating them. They also argue that these uncertainties, and the additional expenses required under the Mining Act, have prevented them from meeting their contractual obligations and entering into new contracts. The Mannings request compensation for their loss in the amount of $6,500,000.00, plus interest.
{5} In the district court the State agencies moved for summary judgment based on both ripeness and constitutional sovereign immunity. Without addressing immunity, the district court granted summary judgment on
DISCUSSION
{6} The proper division of power between state and federal governments is a debate that has waged since the founding of this nation. James Madison highlighted the debate in The Federalist Papers, pointing out the potential dangers of a centralized federal government to the states. The Federalist No. 39, at 256-63 (James Madison) (M. Walter Dunne ed.1901) (adoption of republican principles in the new Constitution), No. 45, at 314-20 (discussion of possible dangers to state governments from the federal government), No. 46, at 321-28 (comparison of the powers of the state and federal government). Ultimately, states ceded their autonomy as part of a balanced, federalist system in which they retained a level of sovereignty, including a corresponding level of sovereign immunity.
{7} The degree of immunity retained by the states today is one outcome of this historical debate over the balance of power between the states and the federal government. See Erwin Chemerinsky, Federal Jurisdiction 398-400 (4th ed.2003) (discussing the sovereign immunity debates at the state ratification conventions). Under the Eleventh Amendment,
{8} As will be further discussed in this opinion, the effect of Alden, if any, upon claims filed in state court under the Takings and Contracts Clauses lies at the heart of this controversy. Before analyzing Alden in detail, however, we begin our analysis by reviewing the Takings Clause and its history of enabling claims similar to those brought by the Mannings in this case. We will then separately address the Contracts Clause claim.
Standard of Review
{9} Whether constitutional sovereign immunity can shield a state, in state court, from claims based on the Takings and Contracts Clauses is an issue of law we review de novo. Hasse Contracting Co. v. KBK Fin., Inc.,
Takings Clause Claims Against State Governmental Agencies
{10} The Takings Clause is found in the Fifth Amendment to the United States Constitution and prevents the government from taking private property, overtly or through regulation, without justly compensating the lawful owner. U.S. Const, amend. V (“[Pjrivate property [shall not] be taken for public use, without just compensation.”); Pennsylvania Coal Co. v. Mahon,
{11} For over a century, the Fifth Amendment has been made applicable to the states through the Fourteenth Amendment’s guarantee of due process. Chicago B. & Q.R. Co. v. City of Chicago,
{12} Historically, the United States Supreme Court has consistently applied the Takings Clause to the states, and in so doing recognized, at least tacitly, the right of a citizen to sue the state under the Takings Clause for just compensation. Three such cases merit discussion.
{13} In Lucas v. South Carolina Coastal Council,
{14} A second case, Palazzolo v. Rhode Island,
{15} Most recently, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
{16} Even though the Supreme Court did not explicitly address the issue of state sovereign immunity, these three cases demonstrate the Court’s thinking, and inform our own on that subject, because in each ease the possibility of a compensatory claim against the state was at the center of the controversy. And these three recent opinions do not stand alone. Even before Lucas, the Supreme Court suggested that the Takings Clause provides a justiciable remedy for individuals to assert against the state in state court.
{18} Applying this constitutional framework to the ease before us, we acknowledge the close resemblance between the Mannings’ situation and the facts in Lucas, Palazzolo, and Tahoe. Like the property owners in each of these cases, the Mannings are contending with state agencies responsible for implementing legislation intended to protect land from certain uses. In the Mannings’ ease, the regulations require that owners of existing mines complete an in-depth mining operation site assessment, including certain reclamation requirements. See § 69-36-7. These regulations are intended to ensure that mine owners properly reclaim land that has been mined. Section 69-36-2. Looking not to the merits of their takings claim, but to the broader question of whether the Mannings may even assert such a claim in state court, this precedent from the United States Supreme Court strongly suggests that the court below erred in rejecting the Mannings’ claim.
{19} Importantly, New Mexico constitutional and statutory law also supports the proposition that sovereign immunity does not bar takings claims when asserted against the state for just compensation, at least in eertain situations. Both the constitution and laws of New Mexico include provisions requiring just compensation when the state takes private property for public use. N.M. Const., art. II, § 20 (“Private property shall not be taken or damaged for public use without just compensation.”); NMSA 1978, § 42A-1-29 (1981) (authorizing inverse condemnation proceedings against any government agency of the state that is authorized to exercise eminent domain). Although these legal authorities do not apply directly to the Mannings’ case, because this is not an instance of eminent domain, they nonetheless demonstrate that the State provides compensation under similar circumstances, and can be sued in state court if it does not.
{20} In response, the State argues a radical position that creates a paradox. The State acknowledges that if a state agency has the power of eminent domain, like the Transportation Department, then the State must provide just compensation for a taking. However, if the agency is not given the power of eminent domain, like the agencies here, but is guilty of a regulatory taking like that alleged by the Mannings, then the private individual is without a remedy in state court, even though both the State and Federal Constitutions obligate the State to pay.
{21} We are not suggesting that the legislature cannot prescribe terms and conditions that govern recovery under the Takings Clause, such as Section 42A-1-29. When a statutory framework provides for recovery, individuals must abide by it. However, such legislation cannot insulate the state from providing just compensation for takings that do not involve formal eminent
{22} If we were to relieve the state from paying for takings when agencies do not have statutory eminent domain authority, then paradoxically we would bar practically every regulatory taking claim against a state agency. A regulatory takings claim, by definition, does not invoke eminent domain powers because the state claims only to regulate the use of land and not to condemn its title. But the protections of the Fifth Amendment do not rest on such formalistic distinctions. A regulatory taking can be just as devastating to property rights as a taking by eminent domain, and the right of the landowner to compensation is just as central to the promise of the Bill of Rights in either instance.
The State’s Argument Under Alden v. Maine
{23} In the face of so much authority favoring the Mannings’ position, the State agencies base their argument primarily on Alden,
{24} Alden and its progeny stand for the proposition that state constitutional sovereign immunity bars individual claims for damages that are based on legislation passed by Congress pursuant to its Article I powers. Alden,
{25} Based on Alden, this Court in Cockrell,
{26} The question in this case, however, differs from that in Alden and Cockrell. Here, the question is focused on a form of monetary relief — “just compensation” for a taking- — -that is not the result of congressional action under Article I. The Mannings’ claim does not rely at all on congressional action. Rather, the just compensation claim stems directly from the text of the Constitution through the Fifth and Fourteenth Amendments. See U.S. Const. amend. V (“nor shall private property be taken for public use, without just compensation”). Whereas under Article I Congress is allowed to assert its control over states only to a certain point, rights recognized in the people within the text of the Constitution know no such limitation. And as we shall see, the Court in Alden intended no such limitation.
{27} The Court in Alden,
{28} Alden, therefore, lends encouragement to the concept before us now that a right and a remedy textually rooted in the Constitution supersedes or “trumps” state constitutional sovereign immunity, although Congressional remedies fashioned under the Commerce Clause powers of Article I, Section 8 do not. Alden,
{29} In its discussion of Reich v. Collins,
{30} Analyzing Reich, the Court in Alden stated:
[W]e held [in Reich ] that, despite its immunity from suit in federal court, a State which holds out what plainly appears to be “a clear and certain” postdeprivation remedy for taxes collected in violation of federal law may not declare, after disputed taxes have been paid in reliance on this remedy, that the remedy does not in fact exist. ----In this context, due process requires the State to provide the remedy it has promised. The obligation arises from the Constitution itself; Reich does not speak to the power of Congress to subject States to suits in their own courts.
Alden,
{31} The parallel to the Mannings’ case is striking. As in Reich, the State agencies have allegedly taken property but without providing a promised “postdeprivation remedy,” in this case the remedy of “just compensation” promised in the Fifth Amendment which “arises from the Constitution itself.” See id. As in Reich,
{32} The holding in Alden did nothing to alter this outcome, and in fact signaled its acceptance of that same result. We hold, therefore, that Alden did not alter the historical practice of applying the Takings Clause to the states, and nothing in that opinion permits a state to bar a claim for “just compensation” from its courts.
Other Jurisdictions
{33} Importantly, no other jurisdiction post -Alden, federal or state, has held that Takings Clause claims are barred by state constitutional sovereign immunity. In addressing a takings claim against the State of Kentucky in federal court, the Sixth Circuit noted that, notwithstanding constitutional sovereign immunity, the “Fifth Amendment’s requirement of just compensation forces the states to provide a judicial remedy in their own courts.” DLX, Inc. v. Kentucky,
{34} The South Dakota Supreme Court and the Oregon Court of Appeals also examined the same question that we address here. See Benson v. State,
{35} In Boise Cascade,
{36} Three years later, relying in large part on the reasoning in Boise Cascade, the South Dakota Supreme Court similarly held that sovereign immunity did not bar a just compensation claim against the state in state court based on a regulatory taking similar to the Mannings’ claim here. See SDDS,
{37} Boise Cascade, DLX, and SDDS inform this case. Just as in Boise Cascade, the actions of the State agencies here impose environmental regulations which arguably have the effect of taking the Mannings’ property, for which they may be entitled to compensation. All three of these opinions support the Mannings’ claim that the Takings Clause creates a cause of action against a state which is actionable in state court and to which the state may not assert immunity. Most importantly, these eases support the conclusion that Alden did nothing to alter this outcome.
Self-Executing Nature of the Takings Clause
{38} The State agencies offer still another argument. They argue that the Fifth Amendment is not self-executing, and creates no claim for compensation without further congressional action.
{39} In examining specifically whether the Takings Clause is self-executing, we note that there are currently two views on the subject. One view agrees with the State agencies that the Takings Clause is not self-executing and that congressional action is required to enforce the rights protected in the Takings Clause. The other view is that congressional action is not necessary to enforce the attendant rights in state courts, because the Takings Clause is self-executing and creates both a right and remedy. See Manning,
{40} The State agencies assert that the first view is correct and as support they cite to the Tucker Act. The Tucker Act, 28 U.S.C. § 1491(a)(1), was passed in 1887 to give the federal court of claims jurisdiction over a wide variety of claims against the United States government, including claims for compensation.
{41} The State asserts that the Tucker Act provides support for the assertion that the Fifth Amendment by itself never abrogated sovereign immunity. Under this theory, the State argues the Tucker Act both provides jurisdiction and waives sovereign immunity for Takings Clause claims against the federal government. Accordingly such a statutory waiver of immunity must be obtained before takings claims can be brought against the states. See, e.g., Soriano v. United States,
{42} The Mannings, on the other hand, assert that Congress never gave “permission” for the government to be sued under the Fifth Amendment, but rather the Tucker Act was only necessary to create federal jurisdiction over takings claims against the federal government. The Fifth Amendment itself created a remedy for unconstitutional takings that superseded governmental immunity. See, e.g., Hair v. United States,
{43} On its face, the Tucker Act only applies to federal takings claims filed against the federal government. No court has applied the Tucker Act to the States. See Benson,
{44} The State agencies do not rest with the previous argument. They further contend that the Takings Clause is not self-executing as applied to the states because it is applied through Section 1 of the Fourteenth Amendment, and only Section 5 of the Fourteenth Amendment can abrogate sovereign immunity. See Seminole Tribe of Fla.,
{45} We do not find the argument persuasive. It is Section 1 of the Fourteenth Amendment in conjunction with the “just compensation” remedy found in the Takings Clause that abrogates state sovereign immunity. Section 5 gives Congress the power to create remedies, if Congress decides any are necessary, to enforce the rights found in the Fourteenth Amendment, including those found in Section 1. An example of such legislation, protecting against the denial of due process is Title II of the Americans with Disabilities Act. 42 U.S.C. § 12101; see also Tennessee v. Lane,
{46} The Framers of the Constitution explicitly referred to remedies only twice in the Constitution, one being the just compensation provision of the Takings Clause. See Richard H. Fallon, Jr, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and The Federal System 796-97 (5th ed.2003) (stating that the second mention of a remedy is that of habeas corpus which is protected from interference by Congress). The Takings Clause creates an individual right to the remedy of just compensation. More specifically, as incorporated through the Fourteenth Amendment, the Takings Clause mandates that states have made, at the time of the taking, “reasonable, certain and adequate provision for obtaining compensation.” Williamson County Reg’l Planning Comm’n,
{47} These factors lead us to conclude that the Takings Clause is self-executing, at least as applied to the states through the Fourteenth Amendment. We have found no judicial opinion specifically holding that it is not self-executing, and no case has held that to apply the Takings Clause to the states requires congressional action under Section 5 of the Fourteenth Amendment. The dearth of precedent used to support the State agencies’ position speaks in favor of a contrary view. See, e.g., Alden,
The Contracts Clause Claim
{48} The Mannings also seek compensatory damages for a violation of the Contracts Clause of the United States Constitution, asserting that their future and current contractual obligations are impaired by the Mining Act. The Contracts Clause says, “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const, art. I, § 10. The State agencies again claim that state constitutional sovereign immunity bars the Mannings’ claim.
{49} The Supreme Court in Alden discussed the Contracts Clause and sovereign immunity as related to its opinion in Hans v. Louisiana,
{50} The Supreme Court’s interpretation of Hans in Alden makes clear that the Mannings’ Contracts Clause claim is barred by sovereign immunity because the Contracts Clause does not provide for claims for money damages. We have found no authority to the contrary.
CONCLUSION
{51} For the foregoing reasons, we reverse the Court of Appeals regarding the Takings Clause claim and affirm regarding the Contracts Clause claim. We remand this case to the Court of Appeals to address ripeness issues.
{52} IT IS SO ORDERED.
Notes
. Richard Manning, who originally brought this action, has since passed away and Kimberly Dutton has been substituted as personal representative of the Estate of Richard Manning.
. "The Judicial power to the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign State.” U.S. Const, amend. XI.
. In a later case, a plurality of the Supreme Court noted it was not yet decided if sovereign immunity was a bar to Takings Clause claims. City of Monterey v. Del Monte Dunes,
. The Mannings originally attempted to bring their claim under Section 42A-1-29. That claim was dismissed because the State agencies here do not have a statutory grant of eminent domain power. Thus, the claim did not fall under the provisions of Section 42A-1-29.
. The opinion in Katz is instructive because it discusses Alden’s limitations. In Katz the Court was examining whether sovereign immunity barred actions against the state under the Bankruptcy Clause.
. The Tucker Act states in pertinent part,
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491. Early precedent found that Takings Clause claims fell under the Tucker Act only if the claim could be classified as an “implied contract." Seamon, supra, at 1092 (quoted authority omitted). However, the Supreme Court later found that the clause itself creates a cause of action founded upon the Constitution, thus that section of the Tucker Act could be utilized rather than the implied contract section to obtain federal court jurisdiction. Id. at 1092-93.
. The cases cited in the Mannings’ brief allow Contracts Clause actions to be asserted against the respective states, but neither claim is for individual money damages for impairment of private contracts. Renaud v. Wyoming Department of Family Services,
Dissenting Opinion
(dissenting).
{53} I respectfully dissent. The majority, in taking up this constitutional question, has followed the Court of Appeals away from a clear path for resolution of this dispute and into what appears to be a thicket of constitutional jurisprudence. I prefer to stay on a safer path and leave the task of cutting through the mass of federalism, takings, and sovereign immunity holdings for another day, and another court. I would simply hold, as the district court did, that this case is not yet ripe.
{54} “Ripeness doctrine is rooted in the same general policies of justiciability as standing and mootness.” 13A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3532.1,130 (2d ed.1984). Lack of ripeness, like lack of standing, is a potential jurisdictional defect, which “ ‘may not be waived and may be raised at any stage of the proceedings, even sua sponte by the appellate court.’ ” Gunaji v. Macias,
As compared to standing, ripeness assumes that an asserted injury is sufficient to support standing, but asks whether the injury is too contingent or remote to support present adjudication.... Ripeness cases have generated a functional approach that directly weighs the importance of the interest advanced; the extent of the injury or risk; the difficulty of deciding the substantive issues and the allied need for specific factual illumination; and the sensitivity of the issues in relation to future eases, the states, and other branches of the federal government.
Wright, Miller, & Cooper, supra, at 130. “The values of avoiding unnecessary constitutional determinations and establishing proper relationships between the judiciary and other branches of the ... government lie at the core of ripeness policies.” Id. at 120; see also Gunaji,
{55} The district court held that the Mannings’ mining operations were subject to a federal injunction stemming from separate federal litigation, see Manning v. United States,
{56} Although this Court has the power to grant standing in exceptional cases presenting a matter of great public importance, and may waive objections for mootness when an issue is capable of repetition yet may avoid review, Gunaji,
{57} A decision on ripeness grounds would have the effect of vacating the Court of Appeals decision and I believe it is not necessary to remand the case for further proceedings. See Wright, Miller, & Cooper, supra, at § 3532.2,137 n. 42 and accompanying text. I would therefore affirm the district court’s dismissal on ripeness grounds.