FILED
United States Court of Appeals
Tenth Circuit
October 27, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
TARRANT REGIONAL WATER
DISTRICT, a Texas State Agency,
Plaintiff - Appellee,
v. No. 07-6273
RICHARD SEVENOAKS; KENNETH
K. KNOWLES; JACK W. KEELY; ED
FITE; LINDA LAMBERT; FORD
DRUMMOND; LONNIE FARMER;
JESS MARK NICHOLS; RUDOLF
JOHN HERRMANN, in their official
capacities as members of the
Oklahoma Water Resources Board
(OWRB) and the Oklahoma Water
Conservation Storage Commission,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. 5:07-CV-00045-HE)
M. Daniel Weitman, Assistant Attorney General (Kari Y. Hawkins, Assistant
Attorney General, with him on the brief), Office of the Oklahoma Attorney
General, Litigation Section, Oklahoma City, Oklahoma, appearing for Appellants.
Clyde A. Muchmore, Crowe & Dunlevy, Oklahoma City, Oklahoma (Harvey D.
Ellis and L. Mark Walker, Crowe & Dunlevy, Oklahoma City, Oklahoma; Kevin
L. Patrick and Scott C. Miller, Patrick, Miller, Kropf, P.C., Aspen, Colorado, with
him on the brief), appearing for Appellee.
Before TACHA, BRISCOE, and HARTZ, Circuit Judges.
TACHA, Circuit Judge.
The plaintiff-appellee, Tarrant Regional Water District (“TRWD”), is a
Texas agency responsible for supplying public water to the northern part of the
state. The defendants-appellants are the nine members of the Oklahoma Water
Resources Board (“OWRB”), the Oklahoma agency responsible for issuing
permits for the appropriation, sale, and use of Oklahoma water. TRWD filed suit
in federal district court, alleging that Oklahoma law unconstitutionally prevents
TRWD from appropriating or purchasing water located in Oklahoma. The
defendants filed a motion to dismiss, claiming in part that the matter was not a
ripe “case or controversy,” that the defendants were immune from suit under the
Eleventh Amendment, and that the court should abstain under the doctrine of
Younger v. Harris. 401 U.S. 37 (1971). The district court denied the motion, and
the defendants now appeal. We hold first that there is a case or controversy ripe
for adjudication. We have jurisdiction under 28 U.S.C. § 1292(a)(1) to consider
the district court’s rejection of Eleventh Amendment immunity, which we
AFFIRM. Because we do not have jurisdiction to consider the district court’s
decision not to abstain, we DISMISS that portion of the defendants’ appeal.
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I. BACKGROUND
The Red River begins in the Texas panhandle and flows east along the
border of Texas and Oklahoma, and then south through Arkansas and Louisiana.
In 1978, these four states entered into the Red River Compact, which apportions
water from the river and its tributaries to the signatory states. 1 The Oklahoma
legislature has also enacted a series of laws that TRWD calls “anti-export laws,”
which regulate the use and transfer of surface water in Oklahoma. For example,
the legislature established a moratorium on the sale or exportation of water
outside the state that is effective until November 2009. Okla. Stat. tit. 74,
§ 1221.A; Okla. Stat. tit. 82, § 1B(A). The Oklahoma Attorney General also has
issued an opinion 2 based on his interpretation of Oklahoma law that concludes:
“we consider the proposition unrealistic that an out-of-state user is a proper
permit applicant before the Oklahoma Water Resources Board. We can find no
intention to create the possibility that such a valuable resource as water may
become bound, without compensation, to use by an out-of-state user.” Okla. Op.
1
The Compact was approved by Congress, see Pub. L. No. 96-564, and
therefore has the status of federal law. See New York v. Hill, 528 U.S. 110, 111
(2000); Texas v. New Mexico, 462 U.S. 554, 564 (1983).
2
Under Oklahoma law, the defendants are required to follow an attorney
general’s opinion until a court determines otherwise. See Hendrick v. Walters,
865 P.2d 1232, 1243 (Okla. 1993) (“Public officers have the duty to follow those
opinions until they are judicially relieved of compliance.”). The defendants assert
that the Red River Compact itself has overruled this opinion, but the Compact is
not a judicial action and therefore does not by itself relieve OWRB officers from
compliance with the attorney general’s opinion.
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Att’y Gen. No. 77-274 (1978). Other “anti-export statutes” include Okla. Stat. tit.
82, § 105.16(B), which the plaintiffs contend discriminatorily provides for surface
water appropriations exceeding seven years only when the use will benefit
Oklahoma; Okla. Stat. tit. 82, § 1085.2(2), which prohibits the OWRB from
contracting to convey title or allow the use of water outside of Oklahoma without
legislative authorization; Okla. Stat. tit. 82, § 1085.22, which prohibits the
Oklahoma Water Conservation Storage Commission (of which the defendants are
ex officio members, see Okla. Stat. tit. 82, § 1085.18) from selling water out of
state; Okla. Stat. tit. 82, § 1266(9), which by definition excludes out-of-state
entities from membership in an Oklahoma water district; and Okla. Stat. tit. 82,
§ 1324.10(B), which prohibits an Oklahoma water district from selling or
exporting water outside of the state without the consent of the legislature.
TRWD filed suit in federal district court against the defendants in their
official capacities, contending that Oklahoma law unconstitutionally prohibits
TRWD from obtaining water located in Oklahoma. According to TRWD, the Red
River Compact preempts Oklahoma’s “anti-export laws” under the Supremacy
Clause, and, additionally, those laws violate the dormant Commerce Clause.
TRWD seeks a declaratory judgment that the laws at issue are unconstitutional
and a permanent injunction enjoining the defendants from enforcing them.
Shortly after it filed its complaint, TRWD submitted an application to the OWRB
for an appropriation of water. The parties later stipulated that the OWRB would
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not act on the application until this case was resolved.
The defendants filed a motion to dismiss, arguing that (1) there is no case
or controversy as required to establish federal jurisdiction because the issue is not
ripe for adjudication; (2) they are entitled to immunity under the Eleventh
Amendment; (3) the district court should abstain under Younger or Burford v. Sun
Oil Co., 319 U.S. 315 (1943); and (4) Louisiana and Arkansas, as signatories to
the Red River Compact, are indispensable parties. The district court denied the
motion. On appeal, the defendants reassert their arguments relating to ripeness,
immunity, and Younger abstention. 3
II. DISCUSSION
A. Case or Controversy
The federal courts’ jurisdiction extends only to actual cases or
controversies. Garcia v. Bd. of Educ., 520 F.3d 1116, 1123 (10th Cir. 2008).
“[T]his means that, throughout the litigation, the plaintiff must have suffered, or
be threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7
(1998) (internal quotations omitted). The defendants argue that there is no case
or controversy because the issue is not ripe for adjudication. The defendants
3
The defendants raised the ripeness issue only in their reply brief, and we
generally do not review issues raised for the first time in a reply brief. See Stump
v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Because the issue, however, goes to
this court’s subject matter jurisdiction, we will consider the defendants’
challenge. See Kaw Nation v. Lujan, 378 F.3d 1139, 1142 (10th Cir. 2004).
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claim the OWRB could still grant TRWD’s application, in which case no dispute
would exist. We disagree, because “a plaintiff challenging the constitutionality
of a state statute has a sufficiently adverse legal interest to a state enforcement
officer sued in his representative capacity to create a substantial controversy
when . . . the plaintiff shows an appreciable threat of injury flowing directly from
the statute.” Wilson v. Stocker, 819 F.2d 943, 947 (10th Cir. 1987). As the
district court explained, a fair reading of the statutes at issue demonstrates that
the OWRB is arguably precluded from granting TRWD’s application. TRWD has
thus shown it faces an appreciable threat of injury sufficient to invoke federal
jurisdiction.
B. Eleventh Amendment Immunity
This court has jurisdiction to hear the OWRB’s appeal on the issue of
Eleventh Amendment immunity. Generally, only final judgments by the district
court are appealable under 28 U.S.C. § 1291. Woodruff v. Covington, 389 F.3d
1117, 1121–22 (10th Cir. 2004). When the district court denies Eleventh
Amendment immunity, however, that denial may be reviewed interlocutorily
under the collateral-order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v.
Metcalfe & Eddy, Inc., 506 U.S. 139, 147 (1993); Timpanogos Tribe v. Conway,
286 F.3d 1195, 1199–1200 (10th Cir. 2002).
For purposes of this appeal, it is not necessary to detail the precise contours
of Eleventh Amendment jurisprudence; the following summary is sufficient. The
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Eleventh Amendment has been interpreted to bar suits against states and state
agencies for money damages in federal court. See Hans v. Louisiana, 134 U.S. 1,
20–21 (1890); Edelman v. Jordan, 415 U.S. 651, 664–66 (1974); ANR Pipeline
Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir. 1998), overruled on other grounds
by Hill v. Kemp, 478 F.3d 1236, 1259 (10th Cir. 2007). However, under the
doctrine of Ex parte Young, 209 U.S. 123 (1908), Eleventh Amendment immunity
does not extend to a state official sued in his official capacity when the plaintiff
seeks only prospective, injunctive relief. Hill, 478 F.3d at 1255–56. The fact that
prospective relief could have financial consequences does not give rise to
immunity, but when the requested relief is akin to a retrospective damages award,
Ex Parte Young is inapplicable and the Eleventh Amendment prohibits the federal
suit. See Edelman, 415 U.S. at 667–69.
In this case, the defendants are state officials within the ambit of the
Eleventh Amendment, and they are sued in their official capacities. Moreover,
the complaint purports to seek only prospective, injunctive relief, requesting:
(A) a declaratory judgment (i) of the invalidity, under the Red River
Compact, and the Supremacy and Commerce Clauses of the United
States Constitution, of Oklahoma’s Anti-Export Laws, including
Attorney General Opinion No. 77-274; and (ii) that given Oklahoma’s
obligations under the Red River Compact and the Commerce Clause, no
adverse action may be taken against Plaintiff’s Applications based
solely upon the fact that Plaintiff is a nonresident of Oklahoma or seeks
to deliver or use the appropriated water outside of Oklahoma.
(B) a permanent injunction forbidding Defendants, the members of both
the Oklahoma Water Resources Board and Water Conservation Storage
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Commission, from enforcing the Anti-Export Laws or abiding by
Oklahoma Attorney General Opinion No. 77-274;
...
(D) costs incurred by Plaintiff in this action 4; and
(E) such other equitable and legal relief as the Court may find
appropriate and just under the circumstances of this case.
Thus, this case seems to fall squarely within Ex parte Young. Indeed, the
district court reached this conclusion in holding that the defendants are not
immune from suit.
The defendants’ counter-argument is essentially a two-step analysis. First,
they contend that any decision that infringes upon state sovereignty gives rise to
immunity under Idaho v. Coeur d’Alene Tribe. 521 U.S. 261 (1997). Second,
they argue that if TRWD were to win on the merits, that decision would be akin
to granting TRWD’s water application, and such a decision would infringe upon
Oklahoma’s sovereignty.
This argument fails at both steps. First, as is explained more fully below,
the issue of sovereignty is no longer a part of our analysis regarding Eleventh
Amendment immunity. Second, even if TRWD wins on the merits, that decision
will not give TRWD the right to immediately begin collecting Oklahoma water.
Such a decision only would declare certain Oklahoma statutes to be
4
Requesting costs does not transform the action into one for money
damages. See Hutto v. Finney, 437 U.S. 678, 692 (1978).
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unconstitutional.
Citing Coeur d’Alene and ANR Pipeline, the defendants argue that the relief
requested in this case affects a core “sovereign interest” of Oklahoma. This
infringement on their sovereignty, they argue, entitles them to Eleventh
Amendment immunity. In Coeur d’Alene, an Indian tribe sued Idaho officials,
seeking a declaratory judgment to establish the tribe’s right to exclusive use and
quiet enjoyment of certain lands. Coeur d’Alene, 521 U.S. at 265. Although the
suit fell within the traditional scope of Ex parte Young, the Supreme Court held
the suit was barred. Id. at 287. The Court reasoned that the relief requested—the
functional equivalent of quieting title—“implicate[d] special sovereignty
interests” of Idaho. Id. at 281. Tracking this language, we later held in ANR
Pipeline that Coeur d’Alene had narrowed the scope of Ex parte Young such that
federal courts must examine whether the relief requested “implicates special
sovereignty interests.” ANR Pipeline, 150 F.3d at 1190. When it does, this court
wrote, the Ex parte Young exception is inapplicable. Id.
Both the Supreme Court and this court, however, have since limited the
reach of Coeur d’Alene. In Verizon Maryland, Inc. v. Public Service Commission
of Maryland, 535 U.S. 635 (2002), the Supreme Court did not analyze whether the
claim for Eleventh Amendment immunity involved special sovereignty interests.
See id. at 645. Instead, the Court held that “[i]n determining whether the doctrine
of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only
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conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.’” Id. We subsequently acknowledged that our decision in ANR
Pipeline misconstrued Coeur d’Alene. See Hill v. Kemp, 478 F.3d 1236, 1259
(10th Cir. 2007). The Hill court explained the transformation of our
jurisprudence and clarified the scope of Ex parte Young:
The Supreme Court’s formulation of Coeur d’Alene in Verizon
Maryland is thus somewhat different from what we had understood it
to be in ANR Pipeline. . . . [T]he Supreme Court in Verizon Maryland
clarified that the courts of appeals need not (and should not) linger over
the question whether “special” or other sorts of sovereign interests are
at stake before analyzing the nature of the relief sought. Thus, to the
extent that our decision in ANR Pipeline read Coeur d’Alene as
requiring “federal courts [to] examine whether the relief sought against
a state official ‘implicates special sovereignty interests,’ ” we recognize
today that Verizon Maryland abrogated this step. Instead, the Supreme
Court has instructed that we are to proceed immediately in every case
to the “straightforward [or so one might hope] inquiry” whether the
relief requested is “properly” characterized as prospective or is indeed
the functional equivalent of impermissible retrospective relief.
Hill, 478 F.3d at 1259 (citation omitted). Accordingly, we reject the defendants’
argument that the particular sovereignty issues implicated in this case are relevant
to our analysis of Eleventh Amendment immunity. We turn instead to a
straightforward inquiry as to whether the relief requested here is properly
characterized as prospective.
The relief sought by TRWD—namely, a declaratory judgment that the laws
at issue are unconstitutional and cannot be enforced to the detriment of TRWD, as
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well as an injunction prohibiting the defendants from enforcing those laws—is
clearly prospective. Indeed, the injunctive remedy is nearly identical to that
sought in Verizon Maryland. See Verizon Md., 535 U.S. at 645 (“The prayer for
injunctive relief—that state officials be restrained from enforcing an order in
contravention of controlling federal law—clearly satisfies our ‘straightforward
inquiry.’”). The request “for declaratory relief adds nothing to the prayer for
injunction” and therefore does not impact our analysis. See id. at 646.
Because the impact on state sovereignty is not part of the analysis, the
defendants’ second point—that a decision in TRWD’s favor effectively will grant
the application—need not inform our analysis. The defendants argue, however,
that we must determine whether the relief requested “is prospective, not just in
how it is captioned but also in its substance.” Hill, 478 F.3d at 1259. They
contend that because a decision in TRWD’s favor will effectively grant TRWD’s
pending water application, that decision would be just as intrusive on the state as
a money judgment. See id. (characterizing the relief as prospective in part
because liability would “not impose upon the state ‘a monetary loss resulting
from a past breach of a legal duty on the part of the defendant state officials’”)
(italics omitted) (quoting Verizon Md., 535 U.S. at 646); see also Hill, 478 F.3d at
1260 (characterizing the relief as prospective in part because “[n]othing in [the]
suit calls to mind the sort of literal land grab effort made by the plaintiffs in
Coeur d’Alene with its consequent significant implications on the state fisc”).
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The defendants’ argument appears to be based on two related premises: (1) that
the relief requested in this case makes the suit analogous to the quiet title action
in Coeur d’Alene, and (2) that invalidating the anti-export laws would encroach
on Oklahoma’s “ownership” interests in its natural resources, much like a
favorable judgment would have done in Coeur d’Alene.
To the extent it is even appropriate to draw comparisons to Coeur d’Alene
after Verizon Maryland’s instructions to conduct a “straightforward inquiry” into
the relief requested, we disagree with both premises. First, a favorable judgment
in this case would not entitle TRWD to appropriate Oklahoma water in the same
way that a quiet title action conclusively determines the parties’ rights to real
property. Rather, the judgment would only put TRWD on the same footing as in-
state applicants seeking water appropriations. TRWD’s application for water
would remain pending, and the defendants would have the discretion to determine
whether TRWD’s application meets other state statutory and regulatory standards.
See, e.g., Okla. Stat. tit. 82, § 105.12 (listing factors the OWRB considers in
determining whether to issue a permit to appropriate water); see also Red River
Compact § 2.10, Pub. L. No. 96-564, 94 Stat. 3305 (1980) (“Nothing in this
Compact shall be deemed to . . . [i]nterfere with or impair the right or power of
any Signatory State to regulate within its boundaries the appropriation, use, and
control of water, or quality of water, not inconsistent with its obligations under
this Compact . . . .”). It is also well-established that Oklahoma does not enjoy an
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“ownership interest” in water resources located in the state. See Sporhase v.
Nebraska, 458 U.S. 941, 950–52 (1982); see also City of El Paso v. Reynolds, 563
F. Supp. 379, 383 (D.N.M. 1983) (relying on Sporhase to reject a similar
Eleventh Amendment argument). Thus, we reject the argument that a favorable
judgment in this case would be similar to that sought in Coeur d’Alene.
Because we conclude that the relief requested in this case is properly
characterized as prospective, both as captioned in TRWD’s complaint and in
substance, the defendants are not entitled to immunity under the Eleventh
Amendment.
C. Abstention
This court does not have jurisdiction to review interlocutorily the district
court’s decision not to abstain. A decision to abstain normally satisfies the
collateral-order doctrine and is therefore reviewable by interlocutory appeal. In
re Tri-Valley Distrib., Inc., 533 F.3d 1209, 1216 (10th Cir. 2008). This is so
because res judicata requires federal courts to honor any subsequent judgment of
the state court, which renders the abstention decision effectively unreviewable on
appeal. See In re Rupp & Bowman Co., 109 F.3d 237, 240 (5th Cir. 1997). 5 On
5
This court has established a three-part test for determining when the
collateral-order doctrine applies, deriving from the Supreme Court’s decision in
Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 (1949). “To establish
jurisdiction under the collateral order doctrine, defendants must establish that the
district court’s order (1) conclusively determined the disputed question, (2)
resolved an important issue completely separate from the merits of the case, and
(continued...)
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the other hand, several courts have held that an order denying abstention is
reviewable after an entry of final judgment and, accordingly, is not immediately
appealable. RRI Realty Corp. v. Inc. Village of Southampton, 766 F.2d 63, 65 (2d
Cir. 1985); see also Summers v. Leis, 368 F.3d 881, 889 (6th Cir. 2004);
Confederated Salish v. Simonich, 29 F.3d 1398, 1403 (9th Cir. 1994); 15A
Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure,
§ 3914.14 (“Appealability presents no difficulty in such cases [involving
abstention orders]. Following the general rule, an order that dismisses the entire
action is final, and an order denying dismissal is not final.”).
Although this Circuit has never directly held, we have expressed our doubt
that the denial of Younger abstention is appealable on interlocutory review. See
Robinson v. Kansas, 295 F.3d 1183, 1187 n.6 (10th Cir. 2002) (“It is not even
clear that we would have jurisdiction to consider a Younger claim such as that
presented in this case on interlocutory appeal.”). Today, we join those courts that
have so held and conclude that we do not have interlocutory jurisdiction under the
collateral-order doctrine to consider an appeal from the denial of a motion to
abstain under Younger because that decision is capable of effective review upon
entry of a final judgment in the case. After a final judgment, this court can
5
(...continued)
(3) is effectively unreviewable on appeal from a final judgment.” Crystal Clear
Communications, Inc. v. Southwestern Bell Tel. Co., 415 F.3d 1171, 1178 (10th
Cir. 2005).
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determine whether the district court should have abstained. See Simonich, 29
F.3d at 1403 (noting that review of abstention after final judgment is not moot,
even though the district court has already heard the merits).
We also reject the defendants’ argument that this court should take pendant
jurisdiction over the abstention claim. The Supreme Court has stated that pendant
claims are appealable “if, and only if, they too fall within Cohen’s collateral-
order exception to the final-judgment rule.” Abney v. United States, 431 U.S.
651, 663 (1977). By that formulation, this court does not have jurisdiction over
the abstention issue, because, as noted above, the abstention issue does not fall
within the Cohen collateral-order exception. On the other hand, the Supreme
Court has suggested that taking pendant jurisdiction over interlocutory appeals
might be appropriate in limited circumstances. See Swint v. Chambers County
Comm’n, 514 U.S. 35, 50–51 (1995) (“We need not definitively or preemptively
settle here whether or when it may be proper for a court of appeals, with
jurisdiction over one ruling, to review, conjunctively, related rulings that are not
themselves independently appealable.”).
This court has stated it will take pendant jurisdiction over an interlocutory
appeal only “where the otherwise nonappealable decision is ‘inextricably
intertwined’ with the appealable decision, or where review of the nonappealable
decision is ‘necessary to ensure meaningful review’ of the appealable one.”
Timpanogos Tribe, 286 F.3d at 1200. In this case, the Eleventh Amendment
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immunity and Younger abstention issues are not “inextricably intertwined,” nor is
a review of Younger abstention necessary to a meaningful review of immunity.
In our Eleventh Amendment immunity analysis, we focused on whether
Oklahoma’s sovereign immunity prevents a federal court from deciding whether
the Red River Compact preempts Oklahoma law. We can—and did—engage in
that analysis without addressing the issues related to Younger abstention, which
involve whether the federal action improperly interferes with a state judicial or
administrative proceeding. See Seneca-Cayuga Tribe of Okla. v. Okla. ex rel.
Thompson, 874 F.2d 709, 711 (10th Cir. 1989). Thus, we decline to exercise
pendant jurisdiction over the appeal of the refusal to abstain.
III. CONCLUSION
We hold first that there is a “case or controversy” that is ripe for
adjudication. We conclude that the defendants are not entitled to Eleventh
Amendment immunity, and therefore we AFFIRM the district court’s order on this
point. We do not have jurisdiction to consider the defendants’ appeal of the
district court’s refusal to abstain under Younger and therefore DISMISS that
portion of this appeal.
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