Unpublished Disposition, 919 F.2d 144 (9th Cir. 1990)

MEMORANDUM^** 

Norman Evonuk appeals pro se the district court's dismissal of his action to quiet title to land abutting the Willamette River. He contends the district court erred by determining that his action was barred by sovereign immunity. We affirm.

BACKGROUND

Evonuk filed a pro se complaint on behalf of "himself, his friends and neighbors" against the state seeking to "quiet title to certain areas along the banks of the Willamette River. He also sought a declaratory judgment that Oregon Revised Statute ("O.R.S.") 390.310, establishing the Willamette River Greenway, is unconstitutional because it "deprives citizens of the United States of the right to pass the fee simple in lands to heirs or assigns in accordance with the Supreme Law of the Land."¹ 

The state moved to dismiss the complaint for lack of subject matter jurisdiction under the Eleventh Amendment. The court adopted the findings and recommendation of Magistrate Hogan and dismissed the action.

ANALYSIS

Whether a state is immune from suit under the Eleventh Amendment is a question of law and is reviewed de novo. See BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1395 (9th Cir. 1988) (citing Charley's Taxi Radio Dispatch Corp. v. SIDA, 810 F.2d 869, 873 & n. 2 (9th Cir. 1987)).

Evonuk appears to contend that the district court erred by dismissing his complaint on sovereign immunity grounds.²  This contention lacks merit.

The Eleventh Amendment "denies to the citizens the right to resort to a Federal court to compel or restrain state action ..." Worcester County Trust Co. v. Riley, 302 U.S. 292, 297 (1937). The Supreme Court has held that the Eleventh Amendment "bars a citizen from bringing suit against his own state even though the express terms to the Amendment refer only to suits by citizens of another State." Welch v. Dept. of Highways and Public Transportation, 483 U.S. 468, 472 (1987) (plurality) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)); BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d at 1395). The bar extends to any suit regardless of the relief sought. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984); Cory v. White, 457 U.S. 85, 90-91 (1982).

There are only three exceptions to the sovereign immunity rule. We may find waiver of immunity only "where (1) the state expressly consents; (2) a statute or constitution so provides; or (3) Congress clearly intended to condition the state's participation in a program or activity on the state's waiver of immunity." BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d at 1396 (quoting Collins v. Alaska, 823 F.2d 329, 337 (9th Cir. 1987)).

It appears that this court is without subject matter jurisdiction for several reasons.

First, Evonuk named the State of Oregon as the sole defendant. He did not allege that any state official acted in his individual capacity to violate any entitlement under the U.S. Constitution. He attempts to sue his own state in violation of the Eleventh Amendment. See Welch, 493 U.S. at 472.

Second, the state has not expressly consented to this suit. A review of the relevant sections of the Oregon Revised Statutes and Oregon's constitution indicates that the state has not otherwise provided that it will allow itself to be sued in federal court with regard to the type of action brought by Evonuk. See Or.Const. of 1857.; Or.Rev.Stat. Secs. 271.005 to 275.370; 390.310 to 390.460. See also BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d at 1396; Collins v. Alaska, 823 F.2d at 331-32. Cf. Hay v. Bruno, 394 F. Supp. 286 (D. Or. 1972) (finding federal court jurisdiction to uphold Or.Rev.Stat. Secs. 390.610 and 390.640 as constitutional because whether the state court "worked an unpredictable change in state law" by applying common law principles of real property when it held that the state had acquired a recreational easement under the doctrine of "custom" presented an "inevitabl [e] federal question"). There is no indication by Congress that it intended to create a cause of action for damages against Oregon for its activities pertaining to the Willamette River or conditioned Oregon's activities pertaining to the Willamette River on the state's waiver of immunity. BV Engineering at 1396; Collins at 331-32. Dismissal was proper.

AFFIRMED.