White’s Landing Fisheries, Inc. v. Ohio Department of Natural Resources, Division of Wildlife

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0119p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WHITE’S LANDING FISHERIES, INC.,
Plaintiff,
DEAN KOCH,
Plaintiff-Appellant,
v.
OHIO DEPARTMENT OF NATURAL RESOURCES, DIVISION
OF WILDLIFE; MARY COLE MERTZ, Department of
Natural Resources, sued in both her individual and
official capacities; KENDRA WECKER, Department of
Natural Resources, Division of Wildlife, sued in both
her individual and official capacities; UNITED STATES
FISH AND WILDLIFE SERVICE; DEB HAALAND,
Secretary of the Interior, Department of the Interior,
Fish and Wildlife Service,
Defendants-Appellees.
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No. 25-3345
Appeal from the United States District Court for the Northern District of Ohio at Toledo.
No. 3:24-cv-01371—James G. Carr, District Judge.
Argued: December 10, 2025
Decided and Filed: April 22, 2026
Before: GIBBONS, STRANCH, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: George Katchmer, Bloomingburg, Ohio, for Appellant. Casey Chapman, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for State of Ohio Appellees. ON
BRIEF: George Katchmer, Bloomingburg, Ohio, for Appellant. Casey Chapman, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for State of Ohio Appellees.
>

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No. 25-3345 White’s Landing Fisheries, Inc., et al. v. Ohio Dep’t of
Nat. Res. Div. of Wildlife, et al.
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_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-Appellant Dean Koch appeals the
dismissal of his complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Koch is a commercial fisherman in Erie County, Ohio, and the owner of White’s Landing
Fisheries, Inc. Koch and White’s Landing, which is not a party to this appeal, brought this suit
after the Ohio Department of Natural Resources (ODNR), Division of Wildlife, amended a rule
to limit seine commercial fishing licensees’ ability to catch yellow perch. Koch and White’s
Landing asserted claims under the Fifth Amendment’s Takings Clause, as well as breach of
fiduciary duty and civil conspiracy claims, against ODNR, ODNR Director Mary Mertz and
Division of Wildlife Chief Kendra Wecker in their individual and official capacities, the United
States Fish and Wildlife Service (FWS), and Deb Haaland in her now-former official capacity as
Secretary of the Interior.
The district court dismissed with prejudice Koch’s claims against Ohio and the state
officials. It dismissed his takings claims, reasoning that the Takings Clause does not protect the
value of his fishing license. In the alternative, the court also concluded that sovereign immunity
would bar each claim against Ohio and the state defendants, as state officials, even if the takings
and state law claims did not fail on their own. The court also dismissed Koch’s state law claims
because they were insufficiently pled. Finally, the district court dismissed, seemingly without
prejudice, all claims against the federal defendants for defective service.
We affirm in part the district court’s dismissal of Koch’s complaint based on sovereign
immunity, which bars Koch’s takings and state law claims against Ohio and the state officials.
Because we affirm based on the district court’s lack of subject matter jurisdiction, we reverse in
part and remand with instructions for the district court to dismiss Koch’s claims without
prejudice.

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No. 25-3345 White’s Landing Fisheries, Inc., et al. v. Ohio Dep’t of
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I.
For the purposes of this appeal, we accept as true well-pleaded factual allegations in the
plaintiff’s complaint. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015). But
we need not presume the truth of facts pertinent to our jurisdiction because the plaintiff bears the
burden of establishing that jurisdiction exists. Id. We recount Koch’s key allegations here.
The Great Lakes Fishery Commission is a binational regulatory body that manages
fisheries resources straddling the U.S.-Canada border. FWS has delegated authority to manage
fisheries resources to the Commission, which allocates quotas of game and commercial fish to its
member states and provinces. As one of the Commission’s member states, Ohio receives a quota
of game and fish that may be taken from shared waterbodies, such as Lake Erie. Ohio Revised
Code § 1533.3411 empowers ODNR to promulgate rules to distribute Ohio’s “quota of game and
commercial fish allocated” by the Commission among licensees. DE 1, Compl., Page ID 4.
Koch was a resident of Erie County, Ohio, and the owner of White’s Landing, an Ohio
corporation, at all times relevant to this suit. A commercial fisherman, he was president of the
Ohio Fish Producers Association from 1974 to 2008 and has lobbied for the interests of
commercial fishermen in the state. He alleged that ODNR has pursued policies “intended to
suppress commercial fishing in favor of sport fishing” and increase sport fishing revenues “to the
detriment of Ohio [c]ommercial [f]isheries.” Id. at 6.
One of these alleged policies motivated Koch’s suit. Koch claimed that ODNR in
January 2023 promulgated a rule that denied seine commercial fishers2 permission to catch
yellow perch. Id. at 6–7. According to Koch, this rule effectively “eliminated the taking of
yellow perch from seine fishermen.” Id. at 6. He alleged that the rule allocated yellow perch
1Koch mistakenly cited Ohio Revised Code § 1501.02 for this allegation.
2Seine fishers use a large net that encloses and catches large amounts of fish. Seine, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/seine (last visited Nov. 7, 2025). States have long
regulated seine fishing. See, e.g., Manchester v. Massachusetts, 139 U.S. 240, 240–45 (1891); Miller v.
McLaughlin, 281 U.S. 261, 262–64 (1930); Ohio Rev. Code § 1533.62.

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No. 25-3345 White’s Landing Fisheries, Inc., et al. v. Ohio Dep’t of
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quotas exclusively to “trap net fishermen”3 and prohibited the transfer of yellow perch quotas
from trap net licenses to seine licenses. Id. ODNR proposed the rule in late 2022, prompting
Koch to urge the agency to permit the “transfer of the quota of yellow perch from trap net[] to
sein[e] [fishers].” Id. at 7.
Koch’s allegations referred to the rule titled “Quota Management System for Lake Erie
Fishes,” which specifies that the Chief of the Division of Wildlife determines and allocates
annually commercial fishing quotas for yellow perch. Ohio Admin. Code § 1501:31-3-12(A).
The rule excludes seine commercial fishers by stating that these quotas “will be apportioned
annually within the commercial trap net fishery, by commercial trap net license, and will be
stipulated as terms and conditions of each license.” Id. § 1501:31-3-12(E). As Koch alleged, the
rule also prohibits the transfer of yellow perch quotas from trap net to seine licenses. See id. §
1501:31-3-12(F). He further alleged that Ohio Administrative Code § 1501:31-3-12 “deprived”
him of his “annual catch of yellow perch and the economic value of such catch, diminishing the
value of his license.” DE 1, Compl., Page ID 7. Koch stressed that he was not “compensated for
this diminishment of value for his license” or for “his losses for his annual catches.” Id.
Koch then sued the state of Ohio, the state defendants in their individual and official
capacities, and the federal defendants. First, he asserted claims under the Fifth Amendment’s
Takings Clause against ODNR, Division of Wildlife Resources; Mary Mertz, Director of ODNR,
in her individual and official capacities; Kendra Wecker, Chief of ODNR, Division of Wildlife,
in her individual and official capacities; the United States of America, Department of the
Interior, FWS; and Deb Haaland, former U.S. Secretary of the Interior, in her official capacity.
Second, Koch asserted claims of breach of fiduciary duty against all defendants. Specifically, he
alleged that ODNR’s rule deprived him and White’s Landing of “their annual catch of yellow
perch,” that the defendants “owe[d] a fiduciary duty to the citizens of Ohio,” and that the
defendants breached this duty to the plaintiffs. Id. at 8. Third, Koch asserted civil conspiracy
claims against all defendants, alleging that they also “maliciously combined and conspired to
3These fishers use a fish trap, “a device for catching fish that consists of a net or other structure which
diverts fish into an enclosure” and makes it difficult for the fish to exit. Fish Trap, Merriam-Webster,
https://www.merriam-webster.com/dictionary/fish%20trap (last visited Nov. 7, 2025).

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deprive” him of his personal property, causing him expenses, and committed overt acts of
“malicious and selective prosecution and deprivation of due process . . . .” Id. at 9.
The district court dismissed with prejudice all of Koch’s and White’s Landing’s claims
against Ohio and the state defendants. It dismissed their takings claims against these defendants
on the grounds that the Takings Clauses in the U.S. and Ohio Constitutions do not recognize a
property interest in a fishing license’s value, or in “uncaught fish.” DE 17, Order, Page ID 111.
The court then dismissed Koch’s and White’s Landing’s state law claims against Ohio and the
state defendants, presumably in their individual capacities, because federal review of state
regulatory matters is impermissible and because they failed to sufficiently plead these claims.
Next, the court concluded that state sovereign immunity would bar their takings and state law
claims against Ohio and the state defendants in their official capacities even if these claims did
not fail for other reasons. Finally, the court dismissed without prejudice all claims against the
federal defendants for defective service of process. It cautioned that perfection of service would
not “repair” plaintiffs’ claims against these defendants. Id. at 116.
Koch timely appealed the district court’s dismissal of his claims.
II.
We review de novo a district court’s dismissal of a complaint pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). McCormick v. Miami Univ., 693 F.3d 654, 658 (6th
Cir. 2012). Likewise, we review de novo the question of whether Ohio and the state defendants
are entitled to sovereign immunity. S.J. v. Hamilton Cnty., Ohio, 374 F.3d 416, 418 (6th Cir.
2004). In our review, we “construe the complaint in the light most favorable to the plaintiff,
accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable
inferences in favor of the plaintiff.” Universal Life Church Monastery Storehouse v. Nabors, 35
F.4th 1021, 1031 (6th Cir. 2022) (citation omitted). But we need not “presume the truth” of
factual allegations pertinent to our jurisdiction to hear the case. Skatemore, Inc. v. Whitmer, 40
F.4th 727, 731–32 (6th Cir. 2022) (citation omitted).
The party invoking federal jurisdiction bears the burden of establishing it. Global Tech.,
Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). We must

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address jurisdictional issues before the merits of a case. In re: 2016 Primary Election, 836 F.3d
584, 587 (6th Cir. 2016). Sovereign immunity, as one such jurisdictional issue, “‘must be
decided before the merits.’” Does v. Whitmer, 69 F.4th 300, 305 (6th Cir. 2023) (quoting
Russell, 784 F.3d at 406). Importantly, we may affirm a dismissal on any grounds supported by
the record even if the district court dismissed on other grounds. Wallace v. Oakwood
Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020).
III.
Koch raises three main issues on appeal. First, Koch asserts that the district court
improperly dismissed his takings claims against Ohio and the state defendants on the basis that
he could not claim a property interest in his fishing license’s value. Second, he argues that the
court incorrectly decided that sovereign immunity barred his takings and state law claims against
Ohio and the state defendants in their official capacities even if those claims did not fail for other
reasons. Third, he claims that the court incorrectly dismissed his breach of fiduciary duty and
civil conspiracy claims.
Because sovereign immunity bars Koch’s takings and state law claims against Ohio and
the state defendants, we do not consider the merits of Koch’s takings claims or whether he
properly pled his state law claims. Instead, we explain why sovereign immunity bars Koch’s
claims. After doing so, we address Koch’s arguments that Ohio and the state defendants waived
sovereign immunity and that the district court was required to review ODNR’s rule under Loper
Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), and TWISM Enterprises, L.L.C. v. State
Bd. of Registration for Professional Engineers & Surveyors, 223 N.E.3d 371 (Ohio 2022).
A.
Sovereign immunity may protect states, state agencies or departments, and state officials
sued in their official capacity. Boler v. Earley, 865 F.3d 391, 409–10 (6th Cir. 2017). This
immunity is a “jurisdictional bar” that applies “regardless of the nature of the relief sought.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see Carten v. Kent State
Univ., 282 F.3d 391, 397 (6th Cir. 2002).

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We are also mindful that the interests protected by the Eleventh Amendment should not
be “sacrificed to elementary mechanics of captions and pleading.” Idaho v. Coeur d’Alene Tribe
of Idaho, 521 U.S. 261, 270 (1997). Courts must “look to whether the sovereign is the real party
in interest to determine whether sovereign immunity bars the suit.” Lewis v. Clarke, 581 U.S.
155, 161–62 (2017). For instance, a suit against employees in their official capacities may just
prove to be “another way of pleading an action against an entity of which an officer is an
agent[.]” Id. at 162 (quoting Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)). In such a
case, sovereign immunity may bar the suit. Id.
Sovereign immunity does not typically bar personal-capacity claims, which seek to
impose individual liability on an officer. Id. at 163. Yet when litigants purport to bring these
claims, “we may not take their word for it.” Does, 69 F.4th at 305; see Cunningham v. Lester,
990 F.3d 361, 365 (4th Cir. 2021) (“If there is one unbroken thread in real-party-in-interest
jurisprudence, it is a general refusal to privilege the form of a complaint over its substance.”).
The sovereign is the “real, substantial party in interest” if the relief sought by the plaintiffs is
only “nominally against an officer” because the court’s “decree would operate against” the
sovereign. Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1296–97 (10th
Cir. 2008) (quoting Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir. 2001), and Pennhurst
State Sch. & Hosp., 465 U.S. at 101). Plaintiffs cannot render sovereign immunity inapplicable
merely by naming all defendants as individuals. Ogletree v. McNamara, 449 F.2d 93, 100 (6th
Cir. 1971). Indeed, “the effect of the action upon the sovereign rather than its form” controls our
analysis. Id.
We recognize three exceptions to sovereign immunity. Carten, 282 F.3d at 398. First,
Congress may abrogate a state’s immunity. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507
(6th Cir. 2008). Second, a litigant may seek prospective injunctive relief against a state official
who is engaged in a continuing violation of federal law. Puckett v. Lexington-Fayette Urb. Cnty.
Gov’t, 833 F.3d 590, 598–99 (6th Cir. 2016). Third, a state may waive sovereign immunity.
Carten, 282 F.3d at 398. The test to determine whether a state has waived its immunity from
federal jurisdiction requires us to ask whether the state “unequivocally expressed” its consent.
Pennhurst State Sch. & Hosp., 465 U.S. at 99. Further, a state must expressly consent to suit in

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federal court to waive its immunity. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299,
306 (1990).
Sovereign immunity therefore bars Koch’s takings and state law claims against ODNR
because it is a state department and, as we explain below, no exception to sovereign immunity
applies. See Boler, 865 F.3d at 410. Moreover, sovereign immunity bars Koch’s takings and
state law claims against Mertz and Wecker because Koch has sued these state officials in their
official capacities. See Morgan v. Bd. of Pro. Resp. of the Supreme Ct. of Tenn., 63 F.4th 510,
515 (6th Cir. 2023). And Koch’s claims are “only nominally against” Mertz and Wecker in their
official capacities. See Lewis, 581 U.S. at 162. Koch’s claims are in fact against Ohio, operating
through ODNR, because Koch’s claims target ODNR for promulgating Ohio Administrative
Code § 1501:31-3-12. See id.; Native Am. Distrib., 546 F.3d at 1296–97.
Ordinarily, sovereign immunity would not bar Koch’s takings and state law claims
against Mertz and Wecker in their individual capacities. See Lewis, 581 U.S. at 163. Here,
however, sovereign immunity bars Koch’s claims against these officials in their individual
capacities because the ODNR, as an arm of Ohio, is the “real, substantial party in interest” in this
suit, and Koch made no specific allegations regarding Mertz’s or Wecker’s conduct. See Native
Am. Distrib., 546 F.3d at 1296–97 (quoting Frazier, 254 F.3d at 1253). ODNR is the “real,
substantial party in interest” because Koch sued to obtain injunctive relief that would operate
against ODNR as the agency that promulgated Ohio Administrative Code § 1501:31-3-12. See
id. at 1297 (“[T]he general rule is that relief sought nominally against an officer is in fact against
the sovereign if the decree would operate against the latter.” (alteration in original) (quoting
Pennhurst State Sch. & Hosp., 465 U.S. at 101)). Second, Mertz and Wecker are relevant to
Koch’s claims only insofar as they were associated with ODNR’s promulgation of this rule.
Indeed, Koch did not make any allegations referring specifically to Mertz’s or Wecker’s conduct.
Koch’s sole allegation regarding Mertz and Wecker was that they gave their “approval and
ratification” to ODNR’s “regulations concerning yellow perch,” but this assertion relates only to
their conduct in their official capacities. See DE 1, Compl., Page ID 7. Koch also did not
mention either official in any detail when he pled his breach of fiduciary duty and civil
conspiracy claims. Under these circumstances, Koch cannot sidestep sovereign immunity

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merely by naming Mertz and Wecker as individuals. See Ogletree, 449 F.2d at 100. Sovereign
immunity fully bars Koch’s takings and state law claims against Ohio and the state defendants.
We reject Koch’s claims that sovereign immunity is inapplicable. He asserts that Ohio
and the state officials were not entitled to sovereign immunity because Ohio consented to suit by
enacting the Ohio Administrative Procedure Act (APA), and because Loper Bright and TWISM
required the district court to review ODNR’s rule.
Koch’s first argument fails because Ohio did not consent to Koch’s claims by enacting
the Ohio APA. A state may waive sovereign immunity by consenting to suit. Pennhurst State
Sch. & Hosp., 465 U.S. at 99. But we will not find waiver if the state has not “unequivocally
expressed” its consent to suit and specifically consented to suit in federal court. Id.; Port Auth.
Trans-Hudson Corp., 495 U.S. at 306. Koch provides no evidence that Ohio or its officials
consented to the assertion of takings, breach of fiduciary duty, or civil conspiracy claims against
them in federal court. The Ohio APA permits judicial review of an Ohio agency’s order under
specific procedures. Ohio Rev. Code § 119.12. Koch, however, brought takings and state law
claims—not an administrative challenge to an Ohio agency’s order under the Ohio APA. And
Ohio did not consent in the Ohio APA to suit in federal court. See id.; Pennhurst State Sch. &
Hosp., 465 U.S. at 100. Nor did Ohio “voluntarily invoke[]” the district court’s jurisdiction. See
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999).
Therefore, Ohio did not waive its sovereign immunity by enacting the Ohio APA.
Second, Koch asserts that Ohio and the state officials were not entitled to sovereign
immunity because Loper Bright and TWISM required the district court to review ODNR’s rule.
Neither case, however, required the district court to review ODNR’s rule.
Loper Bright and TWISM do not address or concern sovereign immunity. Loper Bright
requires courts adjudicating challenges to agency actions under the federal APA to “exercise
their independent judgment in deciding whether an agency has acted within its statutory
authority.” 603 U.S. at 412. TWISM instructed that Ohio courts need not, but may, defer to
agency actions under Ohio law. 223 N.E.3d at 381. Koch’s complaint did not include an
administrative challenge to Ohio Administrative Code § 1501:31-3-12 or a claim that the rule

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exceeded ODNR’s statutory authority, so neither case applies. Loper Bright is also inapplicable
because ODNR’s rule is not a federal agency action that may be challenged under the APA. See
5 U.S.C. § 701(b)(1) (defining “agency” to mean “each authority of the Government of the
United States” rather than state agencies); id. § 706 (describing scope of judicial review of an
“agency” action). Koch’s arguments fail. Accordingly, we affirm the district court’s dismissal
of Koch’s takings and state law claims against Ohio and the state defendants based on sovereign
immunity.
B.
Although we affirm the district court’s dismissal of Koch’s takings and state law claims
against Ohio and the state defendants based on sovereign immunity, we reverse in part the
district court’s dismissal of Koch’s claims with prejudice. Because our grounds for affirmance is
the district court’s lack of subject matter jurisdiction, Koch’s claims should be dismissed without
prejudice. See Ernst v. Rising, 427 F.3d 351, 366–67 (6th Cir. 2005).
Finally, we affirm in full the district court’s dismissal of Koch’s claims against the
federal defendants. Koch made no effort to address his defective service of process on the
federal defendants. He has thus waived any argument against these defendants on appeal. See
Bidwell v. Univ. Med. Ctr., Inc., 685 F.3d 613, 617 (6th Cir. 2012). Further, the district court
appropriately dismissed these claims without prejudice. See Price v. Echols, 17 F. App’x 266,
267 (6th Cir. 2001).
IV.
For the foregoing reasons, we affirm in part and reverse in part the judgment of the
district court. Based on sovereign immunity, we affirm in part the district court’s dismissal of all
claims against Ohio and the state defendants. On remand, the district court must dismiss these
claims against Ohio and the state defendants without prejudice. We affirm the district court’s
dismissal of all claims against the federal defendants.

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