Paul Welch v. Mat Manning

1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2248
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Michael Jacobson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jon Bruning, in his official capacity *
as the Attorney General of Nebraska, * [UNPUBLISHED]
*
Appellee. *
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Submitted: May 27, 2008
Filed: June 16, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Michael Jacobson (Jacobson) appeals the district court’s 1 dismissal without
prejudice of his 42 U.S.C. § 1983 action against Nebraska Attorney General Jon
Bruning. Upon de novo review, see Thomas v. St. Louis Bd. of Police Comm’rs, 447
F.3d 1082, 1084-85 (8th Cir. 2006) (noting an appellate court reviews de novo a
district court’s dismissal based on sovereign immunity), we conclude dismissal was
proper because Jacobson’s complaint was barred by sovereign immunity. See Will

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v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (concluding a suit against a
state official in his or her official capacity is a suit against the official’s office, and as
such is no different than a suit against the state itself). Although Jacobson argues on
appeal his complaint fell within the Ex parte Young, 209 U.S. 123 (1908), exception
to sovereign immunity, we conclude the exception did not apply because Jacobson’s
suit essentially questioned the state’s ownership in and authority to regulate
groundwater, and thus implicated special sovereignty interests. See Union Elec. Co.
v. Mo. Dep’t of Conservation, 366 F.3d 655, 658 (8th Cir. 2004) (explaining that,
although a determination of Ex parte Young’s applicability does not look to the merits
of a claim, courts can ask whether a suit implicates special sovereignty interests
making the exception unavailable); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 281-82, 287 (1997) (stating the Ex parte Young exception was not available in
the tribe’s suit against the state because the suit was the functional equivalent of a
quiet title action, and the tribe sought a determination that certain lands were not
within the regulatory jurisdiction of the state; and the requested relief would bar the
state’s officers from exercising authority over particular lands and waters). Cf. Dept
of Rev. of Kentucky v. Davis, 128 S. Ct. 1801, 1810-11, 2008 WL 2078187 (declaring
a state may exempt interest on its own municipal bonds from taxation while taxing
interest on out of state bonds without violating the Commerce Clause, because “the
issuance of debt securities to pay for public projects is a quintessentially public
function” of the state. Therefore, “apprehension in . . . unprecedented . . . interference
with a traditional government function is just as warranted here, where [respondents]
would have us invalidate a century-old taxing practice . . . presently employed by 41
States . . . and affirmatively supported by all of them . . . .”) (citations and quotation
omitted).
We affirm the judgment of the district court. See 8th Cir. R. 47B.
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