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Ninth Ave. Remedial Group v. Allis-Chalmers Corp.

ELR Citation: 27 ELR 21307
Nos. 2:94-CV-331-RL-1, 962 F. Supp. 131/(N.D. Ind., 04/24/1997)

The court holds that Indiana did not waive its Eleventh Amendment immunity in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) suits by judicial decision, statute, or conduct. The court first holds that the Indiana Supreme Court's elimination of the defense of sovereign immunity in tort liability cases applies only against the state in Indiana state courts. A state's general waiver of sovereign immunity is not enough to waive the protection of the Eleventh Amendment. To constitute a waiver of Eleventh Amendment immunity, the judicial waiver must specify the state's intention to subject itself to suit in federal court. At no point in its decision eliminating the sovereign immunity defense in tort cases did the Indiana Supreme Court mention the Eleventh Amendment or explicitly state that the abrogation of immunity in tort cases extends to suit in federal court.

The U.S. Supreme Court held in Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996), that Congress does not have the power under the U.S. Commerce Clause to abrogate the states' Eleventh Amendment immunity. The court turns to plaintiffs' argument that the state recognized that it can be liable under CERCLA, because the Indiana hazardous substance response statutes incorporate the CERCLA definition of liable "persons" and that definition includes "states" as possible responsible persons. The court holds that any language in CERCLA that makes a state liable to private parties is unenforceable. The Indiana statute has no effect on whether the state is liable under CERCLA in federal court.

The court next rejects plaintiffs' argument that the state waived its immunity with prior appearances in other CERCLA cases. Although a state that voluntarily pursues a claim against another party in federal court waives its Eleventh Amendment immunity, that waiver is limited to the claim before the court. As provided in the Indiana Constitution only the Indiana General Assembly has the power to waive the state's sovereign immunity. The Indiana General Assembly authorized the Commissioner of the Indiana Department of Environmental Management to bring suit under CERCLA and by so doing authorized the Commissioner to waive Eleventh Amendment immunity as to those particular actions. Whenever the Commissioner files suits under CERCLA in federal court, he or she waives the state's immunity to the extent necessary to fully determine that litigation. However, this does not mean that the Commissioner waives the state's immunity as to all CERCLA suits.

Counsel for Plaintiffs
Harold Abrahamson
Abrahamson, Reed & Adley
200 Russell St., Hammond IN 46320
(219) 937-1500

Counsel for Defendants
Ronald G. Hayden
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600