White's Landing Fisheries: Sovereign Immunity Bars Federal Takings/State-Law Claims Challenging State Fishing Rules; Jurisdictional Dismissals Must Be Without Prejudice

1. Introduction

In White's Landing Fisheries, Inc. v. Ohio Dep't of Nat. Res. Div. of Wildlife (6th Cir. Apr. 22, 2026), commercial fisherman Dean Koch (and, in the district court, his company White's Landing Fisheries, Inc.) sued the Ohio Department of Natural Resources (ODNR), Division of Wildlife, two ODNR officials (Mary Cole Mertz and Kendra Wecker) in both their official and individual capacities, and federal defendants (United States Fish and Wildlife Service and then-Secretary Deb Haaland).

The dispute arose after Ohio amended its commercial quota-management rules for Lake Erie yellow perch. Koch alleged ODNR’s rule changes effectively excluded seine commercial fishing licensees from yellow perch harvest by allocating quota within the “commercial trap net fishery” and by prohibiting quota transfers from trap-net licenses to seine licenses. He pleaded (1) a federal Fifth Amendment Takings Clause claim, and (2) Ohio-law claims for breach of fiduciary duty and civil conspiracy, contending the rule deprived him of catch, income, and the “value” of his license.

The key appellate issues were jurisdictional: whether state sovereign immunity (Eleventh Amendment immunity) barred Koch’s federal takings and state-law claims against Ohio/ODNR and against ODNR officials, and what the correct form of dismissal is when a federal court lacks subject-matter jurisdiction.

2. Summary of the Opinion

  • The Sixth Circuit affirmed dismissal of Koch’s claims against Ohio/ODNR and the state officials because sovereign immunity is a jurisdictional bar and no recognized exception applied.
  • The Sixth Circuit reversed in part the district court’s “with prejudice” disposition: because dismissal rested on lack of subject-matter jurisdiction, the claims against the state defendants must be dismissed without prejudice.
  • The Sixth Circuit affirmed dismissal of claims against the federal defendants for defective service of process, and held Koch waived any appellate challenge by not addressing service on appeal.
  • The court rejected Koch’s arguments that Ohio waived immunity through the Ohio APA and that Loper Bright Enterprises v. Raimondo and TWISM Enterprises, L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors required merits review of ODNR’s rule.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Pleading posture, standards of review, and jurisdiction-first sequencing

  • Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015): The court accepted well-pleaded allegations as true on review but emphasized that jurisdictional facts are not presumed true and that the plaintiff bears the burden of establishing jurisdiction—foreshadowing that immunity must be resolved before merits.
  • McCormick v. Miami Univ., 693 F.3d 654 (6th Cir. 2012) and S.J. v. Hamilton Cnty., Ohio, 374 F.3d 416 (6th Cir. 2004): Established de novo review for 12(b)(1)/(6) dismissals and sovereign immunity determinations.
  • Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021 (6th Cir. 2022) and Skatemore, Inc. v. Whitmer, 40 F.4th 727 (6th Cir. 2022): Reinforced the complaint-construction rules and the special treatment of jurisdictional allegations.
  • Global Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806 (6th Cir. 2015) and In re: 2016 Primary Election, 836 F.3d 584 (6th Cir. 2016): Anchored the plaintiff’s burden and the principle that courts must address jurisdictional issues before merits.
  • Does v. Whitmer, 69 F.4th 300 (6th Cir. 2023): Supplied the court’s framing that sovereign immunity is jurisdictional and must be decided before merits, and cautioned courts not to accept “personal capacity” labels at face value.
  • Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020): Allowed affirmance on any ground supported by the record, enabling the Sixth Circuit to affirm dismissal on sovereign-immunity grounds without reaching the takings-property-interest merits the district court addressed.

B. The sovereign immunity framework and “real party in interest” analysis

  • Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) and Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002): Pennhurst supplied the core rule: sovereign immunity is a jurisdictional bar that generally applies “regardless of the nature of the relief sought.” Carten supplied the Sixth Circuit’s recognized exception categories (abrogation, Ex parte Young-style prospective relief, waiver).
  • Boler v. Earley, 865 F.3d 391 (6th Cir. 2017): Confirmed immunity can protect states, state agencies/departments, and officials sued in official capacity; ODNR was treated as an arm of the state.
  • Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997): Instructed courts to avoid letting “captions and pleading” defeat immunity; substance matters.
  • Lewis v. Clarke, 581 U.S. 155 (2017) and Kentucky v. Graham, 473 U.S. 159 (1985): Provided the doctrinal hook that official-capacity suits are effectively suits against the government entity; the court used this to treat claims as against Ohio when the challenged conduct was ODNR’s rulemaking.
  • Cunningham v. Lester, 990 F.3d 361 (4th Cir. 2021): Cited for the “form over substance” principle in identifying the real party in interest.
  • Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008) (quoting Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001)): Used to articulate that immunity applies when relief nominally sought from officers would “operate against” the sovereign.
  • Ogletree v. McNamara, 449 F.2d 93 (6th Cir. 1971): Crucial to the court’s rejection of Koch’s attempt to avoid immunity by naming officials as “individuals”; the effect on the sovereign controls.
  • Morgan v. Bd. of Pro. Resp. of the Supreme Ct. of Tenn., 63 F.4th 510 (6th Cir. 2023): Reinforced that official-capacity claims implicate sovereign immunity.

C. Exceptions: abrogation, prospective relief, and waiver

  • S & M Brands, Inc. v. Cooper, 527 F.3d 500 (6th Cir. 2008): Supplied the abrogation pathway (Congress may abrogate), which was not implicated by Koch’s pleading.
  • Puckett v. Lexington-Fayette Urb. Cnty. Gov't, 833 F.3d 590 (6th Cir. 2016): Stated the prospective-injunctive-relief exception against ongoing federal-law violations (the Ex parte Young concept), but the court held no exception applied on these pleadings.
  • Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (1990) and Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984): Together imposed a strict waiver standard: waiver must be “unequivocally expressed,” and consent must be express as to suit in federal court.
  • Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999): Supported the conclusion that Ohio did not “voluntarily invoke” federal jurisdiction; thus no constructive waiver.

D. Deference cases invoked by the plaintiff (and rejected)

  • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): The Sixth Circuit treated it as irrelevant because it concerns judicial review of federal agency action under the federal APA, not state agencies, and it does not address sovereign immunity.
  • TWISM Enterprises, L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, 223 N.E.3d 371 (Ohio 2022): Likewise irrelevant because it addresses (state) judicial deference under Ohio law and does not eliminate sovereign immunity or create a federal cause of action to review state rules here.

E. Remedy consequences of jurisdictional dismissal and appellate waiver

  • Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005): Controlled the remedy: jurisdictional dismissals (including sovereign immunity) must be without prejudice.
  • Bidwell v. Univ. Med. Ctr., Inc., 685 F.3d 613 (6th Cir. 2012): Supported the finding that Koch waived arguments by not addressing defective service on appeal.
  • Price v. Echols, 17 F. App'x 266 (6th Cir. 2001): Supported dismissal without prejudice for defective service.

F. Background fishery-regulation cases (context, not outcome-determinative)

  • Manchester v. Massachusetts, 139 U.S. 240 (1891) and Miller v. McLaughlin, 281 U.S. 261 (1930): Cited to show that states have long regulated fishing practices (including seine fishing), helping situate ODNR’s regulation within a historically regulated domain.

3.2 Legal Reasoning

  1. Sovereign immunity first, merits later (or never). Applying Does v. Whitmer and other jurisdiction-first precedents, the Sixth Circuit avoided the district court’s merits discussion about whether the Takings Clause protects the value of a fishing license. Because immunity defeated jurisdiction, the court did not reach the “property interest” question.
  2. ODNR is an arm of the state; official-capacity claims are claims against Ohio. Under Boler v. Earley and Lewis v. Clarke/Kentucky v. Graham, ODNR (a state department) and ODNR officials sued in their official capacities are protected unless an exception applies.
  3. The “individual capacity” labels did not change the substance. Even where Koch named Mertz and Wecker in their individual capacities, the court treated the state as the real party in interest because: (a) the challenged conduct was ODNR’s promulgation of Ohio Admin. Code § 1501:31-3-12, and (b) Koch made no specific allegations of personal misconduct beyond generalized “approval and ratification,” which read as official action. Relying on Ogletree v. McNamara, Coeur d'Alene Tribe, and Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., the Sixth Circuit emphasized that courts look to the action’s practical effect—whether relief would operate against the sovereign—not the complaint’s caption.
  4. No exception applied: no waiver, no applicable review mandate. The court rejected waiver based on the Ohio APA because waiver must be unequivocal and must expressly extend to federal court (Pennhurst, Port Auth. Trans-Hudson Corp. v. Feeney). Ohio Rev. Code § 119.12 provides a state-law judicial-review channel; it did not amount to consent to federal-court takings/tort claims. The court also rejected Koch’s reliance on Loper Bright and TWISM because neither concerns sovereign immunity, and Koch did not plead an APA-style statutory-authority challenge. Further, 5 U.S.C. § 701(b)(1) limits “agency” to federal authorities, so 5 U.S.C. § 706 review principles are inapplicable to ODNR.
  5. Jurisdictional dismissal must be without prejudice. Having affirmed dismissal on immunity (a subject-matter jurisdiction defect), the court applied Ernst v. Rising to require dismissal without prejudice, reversing the district court’s “with prejudice” language as to the state defendants.
  6. Federal defendants: service defect + appellate waiver. The court affirmed dismissal for defective service and held Koch waived any challenge by failing to address service on appeal (Bidwell), leaving intact the district court’s without-prejudice dismissal for service failure (Price v. Echols).

3.3 Impact

  • Reinforces a pleading-proof reality check for “individual capacity” suits. The opinion underscores that plaintiffs cannot evade sovereign immunity simply by naming state officers “individually” when the complaint targets a state rule and seeks relief that would functionally bind the state.
  • Channels challenges to state fishery rules away from federal damages/tort theories against the State. Regulated industries (including commercial fishing) should expect that federal court will not be available for damages-style relief against the State or its agencies absent a valid immunity exception. Litigants must carefully consider alternate avenues (e.g., state-court review mechanisms, state-law remedies where available, or properly framed federal claims that fit an exception).
  • Clarifies remedy hygiene: immunity dismissals are without prejudice. Even when a plaintiff’s theory appears weak, a federal court lacking jurisdiction cannot issue a merits-preclusive dismissal. This matters for claim-preclusion strategy and for preserving the possibility of refiling in a forum with jurisdiction.
  • Limits “Loper Bright” spillover arguments. The court signaled that Loper Bright is not a roving mandate to re-review state regulations in federal court; it is tethered to federal APA review of federal agencies and does not speak to sovereign immunity.

4. Complex Concepts Simplified

Sovereign immunity / Eleventh Amendment immunity
A doctrine that generally prevents private parties from suing a state (or its agencies) in federal court unless the state clearly consents, Congress validly abrogates immunity, or a narrow exception applies.
Official-capacity vs. individual-capacity claims
“Official capacity” is effectively a claim against the governmental entity. “Individual capacity” seeks to hold the officer personally liable. Courts will look past labels if the relief sought would operate against the state or the complaint alleges only official conduct.
Real party in interest
Even if an officer is named, the state is the real party in interest when the lawsuit’s practical effect is to control the state’s actions or require the state to pay.
12(b)(1) vs. 12(b)(6)
Rule 12(b)(1) challenges the court’s power to hear the case (jurisdiction). Rule 12(b)(6) challenges whether the complaint states a legally sufficient claim. If 12(b)(1) succeeds, courts typically dismiss without prejudice.
Dismissal “with prejudice” vs. “without prejudice”
“With prejudice” bars refiling (a merits-preclusive effect). “Without prejudice” allows refiling. Jurisdictional dismissals must be without prejudice because the court never had authority to decide the merits.
Service of process
The formal method of notifying defendants of a lawsuit. If service is defective, a court may dismiss without prejudice. If a plaintiff does not contest that ruling on appeal, the issue is typically waived.

5. Conclusion

The Sixth Circuit’s decision establishes (and reemphasizes) two practical rules for litigants challenging state regulatory action in federal court. First, sovereign immunity will bar takings and state-law claims against a state agency and against state officials when, in substance, the state is the real target and no immunity exception applies—labels such as “individual capacity” will not control. Second, when sovereign immunity defeats subject-matter jurisdiction, dismissal must be without prejudice. The court also rejected attempts to invoke Loper Bright Enterprises v. Raimondo and TWISM Enterprises, L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors as a mechanism to force merits review of a state agency rule in federal court, and it reinforced that defective service and appellate waiver can end federal claims before they begin.