Spoklie v. State of Montana

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SPOKLIE, Individually; 
SPOKLIE ENTERPRISES, L.L.C., a
Montana Limited Liability
Company; KIM J. KAFKA, Esq.;
CINDY R. KAFKA, individually, and
as husband and wife, and as
members of Diamond K Ranch
Enterprises, L.L.C.; DIAMOND K
RANCH ENTERPRISES, LLC, a
Montana Limited Liability
Company, on behalf of themselves No. 03-35857
and others similarly situated,
Plaintiffs-Appellants,  D.C. No.
CV-02-00102-SEH
v.
OPINION
STATE OF MONTANA; STATE OF
MONTANA, DEPARTMENT OF FISH,
WILDLIFE AND PARKS; JEFF
HAGENER, Director of the Montana
Department of Fish, Wildlife and
Parks, in his individual capacity,
Defendants-Appellees.
SPORTSMEN FOR I-143, MONTANA
WILDLIFE FEDERATION,
Intervenor-Appellee.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 1, 2004—Seattle, Washington
6911
6912 SPOKLIE v. STATE OF MONTANA
Filed June 13, 2005
Before: Arthur L. Alarcón, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher
SPOKLIE v. STATE OF MONTANA 6915
COUNSEL
John E. Bloomquist and Suzanne Taylor, Doney Crowley
Bloomquist UDA, Helena, Montana, Sarah K. McMillan,
Tuholske Law Office, Missoula, Montana, for the plain-
tiffs-appellants.
Robert N. Lane, Fish Wildlife & Parks, Helena, Montana,
Mike McGrath, Office of the Attorney General, Helena, Mon-
tana, for the defendants-appellees.
OPINION
W. FLETCHER, Circuit Judge:
Appellants Kim J. and Cindy R. Kafka, Diamond K Ranch
Enterprises L.L.C., Robert Spoklie, and Spoklie Enterprises
L.L.C. challenge a Montana ballot initiative, Proposition I-
143, on federal and state constitutional grounds. We affirm
the district court’s denial of a motion to stay proceedings in
the federal court pursuant to Railroad Commission of Texas
v. Pullman Co., 312 U.S. 496 (1941). We hold that the Kaf-
kas’ claims against the State of Montana and the Montana
Department of Fish, Wildlife and Parks are precluded by the
final judgment previously entered in their parallel state court
case. Finally, we affirm the district court’s dismissal of all
remaining claims.
6916 SPOKLIE v. STATE OF MONTANA
I. Background
Appellants Kim J. Kafka, Cindy R. Kafka, and Diamond K.
Ranch Enterprises (collectively “the Kafkas”), and Robert
Spoklie and Spoklie Enterprises (collectively “Spoklie”), for-
merly owned and operated “alternative livestock” ranches in
Montana, on which they raised elk, deer, bighorn sheep,
mountain goats, and bison. Montana defines alternative live-
stock as “privately owned caribou, white-tailed deer, mule
deer, elk, moose, antelope, mountain sheep, or mountain
goat[s] indigenous to the state of Montana, . . . privately
owned reindeer, or any other cloven-hoofed ungulate as clas-
sified by the department.” Mont. Rev. Code § 87-4-406(1).
Kim and Cindy Kafka own one alternative livestock ranch,
the Diamond K Ranch. Robert Spoklie owns one alternative
livestock ranch, Spoklie Enterprises, and is the co-owner of
another, Spoklie Elk Ranches. Until the passage of Proposi-
tion I-143 (“I-143”), the income from the Kafka and Spoklie
ranches came primarily from “fee shooting,” a practice by
which members of the public, many of them from out of state,
paid to shoot a pre-selected animal on the ranch under the
supervision of a guide.
In October 1999, an animal on a Montana game farm ranch
was diagnosed with chronic wasting disease. Concerned about
the risk of the disease spreading among stocks of alternative
livestock, the legislature imposed a moratorium on applica-
tions for new alternative livestock ranches in May 2000.
Meanwhile, opponents of fee shooting collected enough sig-
natures to qualify I-143 for the November 2000 statewide bal-
lot. Montana voters passed I-143 on November 7, 2000. It
became effective immediately.
I-143 changed Montana law applicable to alternative live-
stock ranches in three major ways. First, it prohibited operat-
ing an alternative livestock ranch without a license obtained
prior to November 7, 2000, and it prohibited the issuance of
new licenses. Mont. Code Ann. § 87-4-407(1). Second, it pro-
SPOKLIE v. STATE OF MONTANA 6917
hibited the transfer of “[an] alternative livestock ranch license
for a specific facility.” Id. at § 87-4-412(2). Finally, it pro-
vided that an alternative livestock licensee “may not allow the
shooting of game animals or alternative livestock . . . for a fee
or other remuneration on an alternative livestock facility.” Id.
at § 87-4-414(2). However, existing holders of alternative
livestock licenses were permitted to “acquire, breed, grow,
keep, pursue, handle, harvest, use, sell, or dispose of the alter-
native livestock and their progeny in any quantity and at any
time of year.” Id.
Appellants filed several lawsuits challenging I-143 in fed-
eral and state court. In February 2001, the Kafkas sued Jeff
Hagener, Director of the Montana Department of Fish, Wild-
life and Parks (“DFWP”), and Marc Bridges, Executive Offi-
cer of the Montana Department of Livestock, in their
individual and official capacities, in federal district court.
They sought a preliminary injunction against enforcement of
I-143 on federal and state constitutional grounds. The district
court denied the injunction on October 5, 2001. See Kafka v.
Hagener, 176 F. Supp. 2d 1037 (D. Mont. 2001). The Kafkas
voluntarily dismissed this suit on November 7, 2001.
On April 8, 2002, the Kafkas sued the State of Montana
and DFWP in Montana state court on several of the same fed-
eral and state constitutional grounds raised in their federal
suit, as well as on several additional federal and state grounds.
In late 2002, the state trial court dismissed all claims other
than the takings claims under the federal and the state Consti-
tutions. Kafka v. Montana Dept. of Fish, Wildlife and Parks,
DV-02-059 (October 21, 2002). [SER 102-113] On February
8, 2005, the state court dismissed the Kafkas’ federal and state
takings claims. Kafka v. Montana Dep’t of Fish, Wildlife, and
Parks, DV 02-059 (Feb. 8, 2005). [Feb. 17, 2005, Rule 28(j)
letter]
On September 28, 2001, Spoklie sued the DFWP in state
court, challenging its interpretation of I-143. The state court
6918 SPOKLIE v. STATE OF MONTANA
granted Spoklie a preliminary injunction, but the Montana
Supreme Court reversed. Spoklie v. Mont. Dep’t of Fish,
Wildlife & Parks, 56 P.3d 349 (Mont. 2002). Spoklie then
amended his state court complaint to include federal and state
constitutional claims. So far as we are aware, no final judg-
ment has been entered in that suit.
On November 6, 2002, the Kafkas and Spoklie filed this
action in federal district court against the State of Montana,
DFWP, and Jeff Hagener, Director of DFWP, in his individ-
ual capacity, challenging I-143 under the federal and state
Constitutions. Shortly thereafter, the Kafkas and Spoklie
moved to stay their federal action pursuant to the Pullman
abstention doctrine, pending resolution of their state-court
suits. On December 30, 2002, the district court denied the
motion to stay. On September 11, 2003, the district court dis-
missed appellants’ claims in their entirety. They timely
appealed.
II. Pullman Abstention
[1] Before reaching the merits, we consider Appellants’
argument that the district court should have abstained under
Pullman. Abstention under Pullman is “an equitable doctrine
that allows federal courts to refrain from deciding sensitive
federal constitutional questions when state law issues may
moot or narrow the constitutional questions.” San Remo Hotel
v. City and County of San Francisco, 145 F.3d 1095, 1104
(9th Cir. 1998). Pullman abstention is appropriate when: “(1)
the federal plaintiff’s complaint requires resolution of a sensi-
tive question of federal constitutional law; (2) the constitu-
tional question could be mooted or narrowed by a definitive
ruling on the state law issues; and (3) the possibly determina-
tive issue of state law is unclear.” Id. Although it is unusual
for the party that has chosen the federal forum to invoke the
abstention doctrine, no bar exists to either party doing so. Id.
at 1105. We review de novo the question of whether the
SPOKLIE v. STATE OF MONTANA 6919
requirements for Pullman abstention are met. Fireman’s Fund
Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002).
[2] We may make short work of Appellants’ argument
under Pullman. We hold that the third element of the test,
supra, has not been satisfied, which makes it unnecessary to
address the first and second elements. When the district court
denied the motion to stay under Pullman, the Montana trial
court in the Kafkas’ case had already ruled adversely on most
of their state law claims, and the federal district court in the
Kafkas’ case had ruled adversely on one of them. Kafka, 176
F. Supp. 2d at 1043 (holding that the fee-shooting ban did not
implicate any fundamental rights under the Montana Constitu-
tion). Further, the Montana Supreme Court in Spoklie’s case
had already sustained DFWP’s interpretation of I-143. See
Spoklie, 56 P.3d at 356. Under these circumstances, the dis-
trict court was entirely justified in concluding that Appellants
had not shown that state law was unclear.
III. Preclusion Against the Kafkas
We next consider whether the Kafkas’ claims against the
State of Montana, DFWP, and Jeff Hagener are barred by
claim preclusion. The Kafkas have brought two earlier suits
against these defendants, one in state court and one in federal
court.
A. The Kafkas’ State Court Suit: Preclusion of Claims
Against the State of Montana and DFWP
[3] When the district court decided this case, no final judg-
ment had been entered in the Kafkas’ state court suit. How-
ever, the state trial court has now entered a final judgment
dismissing their suit in its entirety. Kafka v. Montana Dep’t
of Fish, Wildlife and Parks, DV-02-059 (February 8, 2005).
In determining the preclusive effect of the Montana judgment,
we apply Montana law. 28 U.S.C. § 1738. The final judgment
of a trial court is entitled to preclusive effect. Hollister v. For-
6920 SPOKLIE v. STATE OF MONTANA
sythe, 918 P.2d 665, 667 (Mont. 1996); Meagher County
Newlan Creek Water Dist. v. Walter, 547 P.2d 850, 852
(Mont. 1976). Under Montana preclusion law, “claims liti-
gated in a former action as well as . . . claims which might
have been litigated” are barred. Balyeat Law, P.C. v. Hatch,
942 P.2d 716, 717 (Mont. 1997). “A resolved claim will be
res judicata as to subsequent claims if: (1) the parties are the
same; (2) the subject matter is the same; (3) the issues are the
same and relate to the same subject matter; and (4) the capaci-
ties of the persons are the same in reference to the subject
matter and issues.” Id.; see also Loney v. Milodragovich, Dale
& Dye, P.C., 905 P.2d 158, 161 (Mont. 1995); Troutt v. Colo-
rado Western Ins. Co., 246 F.3d 1150, 1156 (9th Cir. 2001).
[4] All four requirements are easily met here. First, the
defendants in both cases are the State of Montana and DFWP.
Second, the subject in both cases is I-143. Third, the issue in
both cases is the legality of I-143. The Kafkas have added a
federal Commerce Clause claim to this suit, but this claim
arises out of the same subject and “might have been litigated”
in their state court suit. Finally, the Kafkas are suing the same
state defendants.
The Kafkas nevertheless contend that the state trial court’s
dismissal of their takings claims should not preclude their fed-
eral takings claim. They point out that the United States
Supreme Court has granted certiorari in San Remo Hotel, L.P.
v. San Francisco City and County, 364 F.3d 1088 (9th Cir.
2004), in which we held that issues decided by a state court
in resolving a state takings claim are preclusive in a later fed-
eral suit asserting an “equivalent” federal takings claim. The
Kafkas ask that we defer decision on claim preclusion of their
federal takings claim pending the Supreme Court’s decision
in San Remo Hotel.
[5] Whatever the Supreme Court might decide in San Remo
Hotel, the case is inapposite for two reasons. First, the state
court in San Remo Hotel decided only a state law takings
SPOKLIE v. STATE OF MONTANA 6921
claim. In this case, by contrast, the state court decided both
state and federal takings claims. Second, the question in fed-
eral court in San Remo Hotel was issue preclusion. In this
case, by contrast, the question is claim preclusion. In this
case, the Kafkas brought their federal takings claim directly
in state court, and the state court entered a final judgment
rejecting it. Cf. England v. Louisiana State Bd. of Med. Exam-
iners, 375 U.S. 411, 415 (1964). We are precluded by Mon-
tana law from redeciding that claim.
B. The Kafkas’ Federal Court Suit: No Preclusion of
Claim Against Hagener
[6] The Kafkas brought suit in federal district court against
Jeff Hagener, the Director of DFWP, in both his individual
and official capacities, asserting that I-143 violated both state
and federal law. The district court denied a preliminary
injunction on October 5, 2001. On November 7, 2001, the
Kafkas voluntarily dismissed their complaint. It is not clear
from the record before us whether this dismissal was with or
without prejudice. We are therefore unable to conclude on this
record that the dismissal of the district court against Hagener
precludes claims against him in the case before us.
IV. Spoklie’s Claims against the State of Montana
and DFWP
The district court dismissed Spoklie’s federal takings claim
against the State of Montana and DFWP on the ground that
it was not ripe, and dismissed his remaining claims pursuant
to Federal Rule of Civil Procedure 12(b)(6). We review de
novo a dismissal on ripeness grounds. Citizens for Better For-
estry v. United States Dep’t of Agric., 341 F.3d 961, 969 (9th
Cir. 2003). We review de novo a dismissal for failure to state
a claim pursuant to Rule 12(b)(6). Decker v. Advantage Fund,
Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004).
6922 SPOKLIE v. STATE OF MONTANA
A. Eleventh Amendment
[7] Spoklie has sued the State of Montana and DFWP both
for damages and for declaratory and injunctive relief. DFWP
is a department of the State, and is the equivalent of the State
for purposes of the Eleventh Amendment. Austin v. State
Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). In his brief
for the Appellees, the State Attorney General asserts that the
State and DFWP are immune from an unconsented suit for
damages, but “concede[s] that the Eleventh Amendment does
not bar Plaintiffs’ claims for prospective declaratory and
injunctive relief under [Ex parte Young, 209 U.S. 123
(1908)].” We treat the Attorney General’s “concession” as a
waiver of the defense that Spoklie should not have named the
State and DFWP as parties in seeking relief under Ex parte
Young. See Austin, 939 F.2d at 677 (a state may consent to a
suit that would otherwise be barred by the Eleventh Amend-
ment).
B. Spoklie’s Federal Claims
1. Takings
[8] The district court dismissed Spoklie’s federal takings
claim for lack of ripeness, noting that he had failed to show
that I-143 deprived him of all economically viable use of his
property. A federal takings claim is not ripe until a litigant has
“[sought] compensation through the procedures the State has
provided for doing so.” Williamson County Reg’l Planning
Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985). This
requirement applies to facial challenges as well as to as-
applied challenges. Southern Pac. Transp. Co. v. City of Los
Angeles, 922 F.2d 498, 505-06 (9th Cir. 1990) (“[A] claim
alleging that mere enactment of a statute effects an unconsti-
tutional taking is unripe unless and until it is known what, if
any, compensation is available.”) Spoklie has filed suit in
state court challenging I-143 under the federal and state tak-
ings clauses, but so far as we are aware, no decision has been
SPOKLIE v. STATE OF MONTANA 6923
rendered in that suit. Until the state court has finally ruled on
the state takings claim, the federal takings claim is not ripe.
See Williamson County, 473 U.S. at 195.
It is true that we have previously held that one aspect of a
facial takings claim is exempt from the Williamson County
ripeness requirement. In Sinclair Oil Corp. v. County of Santa
Barbara, 96 F.3d 401 (9th Cir. 1996), we observed that a
plaintiff could bring a takings claim under either of two theo-
ries. Either a plaintiff could show that the challenged land use
restriction deprived him of all economically viable use of his
land, or he could show that the action did not “substantially
advance a legitimate state interest.” Id. at 406-07. We found
that, while the first showing required that the plaintiff comply
with the ripeness criterion of Williamson County, the second
showing did not.
[9] Spoklie’s takings claim appears to be based in part on
the theory that I-143 does not substantially advance a legiti-
mate state interest. However, to the extent Spoklie’s takings
claim is premised on this theory, it must be dismissed. In
Lingle v. Chevron U.S.A. Inc., No. 04-163, 2005 WL 1200710
(May 23, 2005), at *14, the Supreme Court has just dis-
avowed the use of the “substantially advances” test in takings
claims, holding that “the ‘substantially advances’ formula is
not a valid takings test, and . . . it has no proper place in our
takings jurisprudence.” To the extent that Spoklie’s takings
claim is premised on an asserted failure of I-143 to satisfy the
“substantially advances” test, Lingle requires that his claim be
dismissed with prejudice. We affirm the district court’s dis-
missal on this ground. Atel Fin. Corp. v. Quaker Coal Co.,
321 F.3d 924, 926 (9th Cir. 2003) (per curiam) (a court may
affirm on any ground evident from the record).
Because we hold that Spoklie has failed to establish that
there has been a taking, we do not need to address the ques-
tion whether a state may be sued for damages under the Tak-
ings Clause of the Fifth Amendment in the absence of its
6924 SPOKLIE v. STATE OF MONTANA
consent. Compare First English Evangelical Lutheran Church
v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (find-
ing that, notwithstanding “principles of sovereign immunity,”
the Constitution “dictates” a damages remedy in takings
cases, but not specifically addressing whether suits against
states for damages may be maintained in takings cases consis-
tent with the Eleventh Amendment), with Broughton Lumber
Co. v. Columbia River Gorge Comm’n, 975 F.2d 616 (9th Cir.
1992) (applying the Eleventh Amendment to a takings claim
against the state).
2. Retroactivity
[10] The district court correctly dismissed Spoklie’s claim
that I-143 is invalid because it is impermissibly retroactive
legislation. The Supreme Court has noted that “the presump-
tion against retroactive legislation is deeply rooted in our
jurisprudence” and “finds expression in several provisions of
our Constitution.” Landgraf v. USI Film Prods., 511 U.S.
244, 265-66 (1994). The relevant provision in this case is Art.
I, § 10, cl. 1, which provides that “[n]o State shall . . . pass
any . . . ex post facto Law.” However, “[t]he Constitution’s
restrictions . . . are of limited scope,” id. at 267, and “[a] stat-
ute does not operate ‘retrospectively’ merely because it . . .
upsets expectations based in prior law.” Id. at 269. Instead,
the relevant question is “whether the new provision attaches
new legal consequences to events completed before its enact-
ment.” Id. at 270. Under this standard, many statutes that “un-
settle expectations and impose burdens on past conduct” are
nonetheless “uncontroversially prospective.” Id. at 269 n.24.
For example, a ban on gambling is not impermissibly retro-
spective simply because it “harms the person who had begun
to construct a casino before the law’s enactment.” Id.
Spoklie argues that I-143 has had impermissible retroactive
effect because it has caused him to lose “vested rights” in his
animals, ranches, alternative livestock licenses, and business
goodwill. While these business losses are potentially relevant
SPOKLIE v. STATE OF MONTANA 6925
to Spoklie’s takings claim, they provide no basis for arguing
that the state’s abolition of formerly legal fee shooting prac-
tices is impermissibly retroactive. A state may outlaw a for-
merly legal business even if it causes hardship to those who
relied on the earlier law. See Mugler v. Kansas, 123 U.S. 623,
669 (1887) (Kansas ban on the sale of beer was constitutional
even though Kansas had allowed the sale of beer at the time
the plaintiffs constructed their breweries). Indeed, Montana
law specifically warns Montana citizens not to rely on the
expectation that the law will never be changed. Mont. Code
Ann. § 1-2-110 (“Any statute may be repealed at any time
except when it is otherwise provided therein. Persons acting
under any statute are deemed to have acted in contemplation
of this power of repeal.”).
3. Substantive Due Process
[11] The district court correctly dismissed Spoklie’s sub-
stantive due process claim, which is based on his theory that
I-143 is an “irrational and arbitrary” law. Substantive due pro-
cess provides no basis for overturning validly enacted state
statutes unless they are “clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety,
morals, or general welfare.” Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 395 (1926). If the legislature “could
have concluded rationally” that certain facts supporting its
decision were true, courts may not question its judgment.
Vance v. Bradley, 440 U.S. 93, 111 (1979) (internal citations
and quotation marks omitted).
The justifications the State has offered for I-143 far exceed
what is necessary to meet this minimal standard. Voters who
supported I-143 could rationally have concluded that the
proposition would promote environmentally sound resource
management by encouraging sport hunting in preference to
fee hunting, and that it would prevent transmission of disease
from the interbreeding of game farm and wild populations.
Supporters could also rationally have concluded, as advocates
6926 SPOKLIE v. STATE OF MONTANA
of I-143 urged in their pre-election arguments, that fee hunt-
ing created an “unacceptable, bankrupt image of hunting por-
trayed by the paid shooting of captive animals,” thereby
threatening the state’s “strong economy based on the public
pursuit and enjoyment of wild, free-ranging public wildlife.”
None of these rationales is clearly arbitrary or pretextual, and
all implicate issues of safety, health, and welfare that are
within a state’s legitimate police power. See Euclid, 272 U.S.
at 395.
4. Commerce Clause
[12] The district court properly rejected Spoklie’s argument
that I-143 places an unconstitutional burden on interstate
commerce. When a state statute affects interstate commerce,
courts assess whether the statute “regulates even-handedly to
effectuate a legitimate local public interest” and whether “its
effects on interstate commerce are only incidental.” Pike v.
Bruce Church, Inc., 397 U.S. 137, 142 (1970). If so, the stat-
ute “will be upheld unless the burden imposed on such com-
merce is clearly excessive in relation to the putative local
benefits.” Id. States enacting statutes affecting interstate com-
merce “are not required to convince the courts of the correct-
ness of their legislative judgments.” Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 464 (1981). Instead, “those
challenging the legislative judgment must convince the court
that the legislative facts on which the classification is appar-
ently based could not reasonably be conceived to be true by
the governmental decisionmaker.” Id. (citation and internal
quotation marks omitted).
As discussed above, a rational legislator could have found
that I-143 serves a legitimate public interest. Spoklie con-
cedes that I-143 does not discriminate overtly against inter-
state commerce, and he has not plausibly alleged that I-143
imposes more than incidental burdens on interstate commerce.
The only basis for Spoklie’s assertion that I-143 unduly bur-
dens interstate commerce is his claim that fee shooting pri-
SPOKLIE v. STATE OF MONTANA 6927
marily attracts out-of-state residents. That a particular service
or recreation appeals to out-of-staters, however, does not
impose on states an obligation to permit it.
Spoklie argues that a state law whose actual goal is eco-
nomic protectionism is subject to a “virtually per se rule of
invalidity.” See Philadelphia v. New Jersey, 437 U.S. 617,
624 (1978). However, this rule applies only when no legisla-
tive objectives other than protectionist ones are “credibly
advanced” or where legislation results in “patent discrimina-
tion against interstate trade.” Id. Here, appellees have
advanced several credible non-protectionist motives, while
appellants have asserted no plausible protectionist ones.
Indeed, to the extent that fee hunting is particularly popular
with out-of-staters, I-143 removes one way in which Montana
businesses can attract out-of-state dollars. It thus accom-
plishes virtually the opposite of economic protectionism. See
Clover Leaf, 449 U.S. at 473 n.17 (“The existence of major
in-state interests adversely affected by the [challenged statute]
is a powerful safeguard against legislative abuse.”)
C. Spoklie’s State Claim
[13] Spoklie claims that I-143 violates his property rights
under Article II, section 3, of the Montana Constitution. How-
ever, the Eleventh Amendment prevents him from asserting
that claim in federal court. To the extent he seeks damages
from the State and from DFWP, the Eleventh Amendment
stands directly in his way. To the extent that he seeks declara-
tory and injunctive relief under Ex parte Young, he is twenty-
one years too late. In 1984, in Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 104 (1984), the Supreme
Court announced that Ex parte Young allows prospective
relief against state officers only to vindicate rights under fed-
eral law. Since Spoklie seeks to vindicate an asserted right
under state rather than federal law, Pennhurst dictates that this
claim must be dismissed.
6928 SPOKLIE v. STATE OF MONTANA
V. Appellants’ Claim against Hagener
Appellants sue Jeff Hagener, Director of DFWP, in his
individual capacity, alleging that he “acted under color of
state law to deprive Plaintiffs of their constitutional rights
secured by the Constitution of the United States” including
their federal rights of due process, protection against retro-
spective laws, and protection against takings of private prop-
erty without just compensation. To establish that a state
official is personally liable in an action under 42 U.S.C.
§ 1983, a plaintiff must show that “the official, acting under
color of state law, caused the deprivation of a federal right.”
Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v.
Graham, 473 U.S. 159, 166 (1985)). State officials have qual-
ified immunity from civil liability under § 1983 “insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th
Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
[14] Appellants have failed to show that any of their federal
constitutional rights have been violated. Since their § 1983
claim against Hagener is premised on the argument that I-143
violates their federal constitutional rights, that claim necessar-
ily fails. We therefore affirm the district court’s dismissal of
Appellants’ § 1983 claim against Hagener.
For the foregoing reasons, the district court’s dismissal of
all of Appellants’ claims is AFFIRMED.