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SDDS, Inc. v. South Dakota

ELR Citation: 31 ELR 20187
Nos. No. 98-3588 et al., 225 F.3d 970/(8th Cir., 09/15/2000) Attorney fees; sovereign immunity

The court affirms a district court order denying sovereign immunity to South Dakota and awarding attorney fees to a multistate solid waste disposal corporation that had challenged two state ballot initiatives regarding operation of a disposal facility. The public's opposition to the construction of the facility prompted the two ballot initiatives, the second of which ended the corporation's plan to build the facility. The corporation subsequently sued the state and prevailed on its allegations that the second ballot initiative violated the dormant U.S. Commerce Clause. The state sought to set aside the judgment on the ground that it was entered in violation of the Eleventh Amendment.

The court first holds that the state waived any sovereign immunity defense it may have had to the corporation's suit. The state for many years actively and vigorously litigated the merits of the corporation's claims in federal court, never once raising an Eleventh Amendment immunity defense until after the district court issued its order. Moreover, the state improperly sought to collaterally attack the previous federal court decision through a Fed. R. Civ. P. Rule 60(b) motion instead of seeking review by petition for writ of certiorari. The court next holds that the district court properly awarded attorney fees to the corporation. The state's appeal from the award of attorney fees assumes success on the merits of its belated sovereign immunity defense. Because this defense failed, there is no basis for overturning the award. The court then refuses to issue a mandate ordering a South Dakota State court to revise its ruling granting the state a new trial on the basis of an instructional error.

[Prior decisions in this litigation are published at 23 ELR 21285, 24 ELR 21318, and 25 ELR 20967.]

Counsel for Appellee
Diane M. Best, Ass't Attorney General
Attorney General's Office
500 E. Capitol St., Pierre SD 57501
(605) 773-3215

Counsel for Appellant
Edward T. Lyons Jr.
Jones & Keller
1625 Broadway, Ste. 1600, Denver CO 80202
(303) 573-1600

Before Gibson and Beam, JJ.