SEVEN UP PETE VENTURE v. SCHWEITZER

No. 06-35384.

523 F.3d 948 (2008)

SEVEN UP PETE VENTURE, an Arizona general partnership dba Seven Up Pete Joint Venture; Canyon Resources Corporation, a Delaware corporation; Jean Muir; Irene Hunter, Doctor; David Muir; Alice Canfield; Tony Palaoro; June E. Rothe-Barneson; Amazon Mining Company, a Montana partnership; Paul Antonioli; Stephen Antonioli; James E. Hoskins, Plaintiffs-Appellants, v. Brian SCHWEITZER, Governor of the State of Montana; Richard Opper, Director of the Montana Department of Environmental Quality, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed April 21, 2008.


Attorney(s) appearing for the Case

Sean Connelly, Reilly, Pozner & Connelly, LLP, Denver, CO, for the plaintiffs-appellants.

Anthony Johnstone, Assistant Attorney General, Helena, MT, for the defendants-appellees.

Before: WILLIAM C. CANBY, JR., SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.


CANBY, Circuit Judge:

The primary question before us is whether the Eleventh Amendment precludes federal jurisdiction over an action seeking compensation under the Fifth and Fourteenth Amendments for a taking of property by a State.

The factual setting of this case is simple enough; the procedural context is more complicated. Seven Up Pete Venture ("the Venture") and other plaintiffs acquired leases of Montana state property for the purpose of mining gold...

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