Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity

• Published date: 02 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Energy and Natural Resources, Sovereign Immunity: Public Sector Government, Water
• Law Firm: Liskow & Lewis
• Author: Ms Rebecca M. Guidry

In a recent opinion, the Fifth Circuit Court of Appeals ruled that the "Sabine River Authority, State of Louisiana" ("SRA-L") is not entitled to Eleventh Amendment sovereign immunity¹

SRA-L was a named defendant in a suit by plaintiffs who own land in Louisiana and Texas. Plaintiffs levied allegations that years-long mismanagement of the Toledo Bend reservoir by SRA-L² culminated in damage to plaintiffs' properties via flooding, violating their constitutional rights under the Fifth Amendment. Plaintiffs alleged that despite advance knowledge of the likelihood for significant downstream flooding, SRA-L decided to open spillway gates freeing water from the reservoir into the Sabine River to alleviate elevated reservoir volumes from a cataclysmic rain storm in March of 2016.

The Fifth Circuit affirmed the federal district court's order denying³ SRA-L's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction by applying the Circuit's well-established six-factor test of Clark v. Tarrant County, 798 F.2d 736, 744-45 (5^th Cir. 1986). An entity classified as an "arm of the state" would be entitled to sovereign immunity provided by the Eleventh Amendment; in contrast, a "political subdivision" is not afforded the same protection. The burden of proof falls on the entity seeking immunity and SRA-L failed to meet its burden.

The six Clark factors are as follows:

"(1) whether state statutes and case law characterize the agency as an arm of the state;

(2) the source of funds for the entity;

(3) the degree of local autonomy the entity enjoys;

(4) whether the entity is concerned primarily with local, as opposed to statewide, problems;

(5) whether the entity has authority to sue and be sued in its own name; and

(6) whether the entity has the right to hold and use property."⁴

In its opinion, the Fifth Circuit considered each factor in turn, focusing primarily on factor number two'the most significant of the six. Since one of the Eleventh Amendment's primary objectives is preservation of the state treasury, the main question when determining whether an entity is considered as an organ of the State is its source of funding (i.e. who will be liable for payment of a judgment levied against it). By analyzing various Louisiana Statutes pertaining to the SRA-L,⁵ the Fifth Circuit concluded that SRA-L "appears to have near-total financial independence."⁶ The Fifth Circuit found SRA-L failed to meet its burden of showing that the state would be liable for a judgment...