FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF MONTANA, Department of
Environmental Quality,
Plaintiff-Appellee,
CITY OF LIVINGSTON; PRIVATE
PROPERTY OWNERS, Plaintiff in the
matter of The City of Livingston
v. BNSF Railway Company, et al. No. 08-35667
Montana Sixth Judicial District D.C. No.
Court, Cause No. DV 07-141, 6:88-cv-00141-
Plaintiff-Intervenors-Appellees, DWM-RKS
v. OPINION
BNSF RAILWAY COMPANY,
Defendant-Appellant,
and
GLACIER PARK COMPANY,
Defendant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
August 5, 2009—Seattle, Washington
Filed November 1, 2010
Before: Harry Pregerson, John T. Noonan and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Pregerson
17993
MONTANA v. BNSF RAILWAY COMPANY 17995
COUNSEL
Katherine M. Haque-Hausrath, Helena, Montana, for the
plaintiff-appellee.
Mark M. Kovacich, Great Falls, Montana, for the intervenors.
17996 MONTANA v. BNSF RAILWAY COMPANY
John C. Berghoff, Jr., Chicago, Illinois, for the defendant-
appellant.
OPINION
PREGERSON, Circuit Judge:
In this appeal, we consider whether an exception to the
Anti-Injunction Act, 28 U.S.C. § 2283, applies to a Montana
state court proceeding stemming from facts related to an ear-
lier federal proceeding, but involving distinct parties and
claims. We hold that no exception applies, and that an injunc-
tion may not issue, and affirm the district court.
Background
For roughly eighty years, BNSF Railway Company
(“BNSF”) and its predecessors in interest operated a railroad
maintenance and fueling facility near Livingston, Montana. In
1988, the State of Montana (“the State”) filed several federal
and state law claims against BNSF in federal district court,
including a claim under Montana’s Comprehensive Environ-
mental Cleanup and Responsibility Act (“CECRA”), Mont.
Code Ann. § 75-10-705 et seq. The State alleged that diesel
fuel and other chemicals contaminated groundwater, soil, and
other natural resources beyond the boundaries of the mainte-
nance facility.
In 1990, BNSF and the State entered into a Partial Consent
Decree (“consent decree”). The consent decree required
BNSF to conduct a remedial investigation, and laid out proce-
dures by which the parties would eventually negotiate and
implement a final remedy. Though the district court retained
jurisdiction over the consent decree, the consent decree did
not specify the remedy to be implemented. By its own terms,
the consent decree did not apply to “a claim by a person other
MONTANA v. BNSF RAILWAY COMPANY 17997
than the parties to this Modified Partial Consent Decree.” To
this day, the State continues to pursue remediation under both
the consent decree and Montana state environmental statutes.
In 2007, 152 property owners (“the Livingston plaintiffs”)
filed several claims against BNSF in Montana state court
alleging contamination of private property and seeking,
among other remedies, “investigation and restoration of real
property.” In Montana federal district court, BNSF moved to
enjoin the Livingston plaintiffs’ Montana state court “investi-
gation and restoration” claim, arguing that an injunction was
necessary to protect or effectuate the district court’s prior
judgment and would aid the district court’s jurisdiction over
the consent decree. The Livingston plaintiffs intervened and
opposed the request. The federal district court concluded that
the Anti-Injunction Act, 28 U.S.C. § 2283, applies, and
denied the injunction. This timely appeal followed.
Discussion
We have jurisdiction over the district court’s order under
28 U.S.C. § 1291. Whether an injunction may issue under the
Anti-Injunction Act is a question of law, which we review de
novo. Blalock Eddy Ranch v. MCI Telecomms. Corp., 982
F.2d 371, 375 (9th Cir. 1992).
[1] The Anti-Injunction Act states that federal courts “may
not grant an injunction to stay proceedings in a state court
except . . . where necessary in aid of its jurisdiction, or to pro-
tect or effectuate its judgments.” 28 U.S.C. § 2283. Here, we
must determine whether an injunction is necessary in aid of
the district court’s jurisdiction over the 1990 consent decree,
or to protect the district court’s judgment implementing the
consent decree.1 “Any doubts as to the propriety of a federal
1
The “necessary in aid of” jurisdiction exception is similar to the “pro-
tect or effectuate” judgments exception. See Lou v. Belzberg, 834 F.2d
730, 740 (9th Cir. 1987). Accordingly, we do not conduct separate analy-
ses here.
17998 MONTANA v. BNSF RAILWAY COMPANY
injunction against state court proceedings should be resolved
in favor of permitting the state courts to proceed . . . .”
Blalock, 982 F.2d at 375 (citing Atl. Coast Line R.R. Co. v.
Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 297
(1970)) (internal quotation marks omitted).
[2] The “exception to the Anti-Injunction Act permitting a
federal court to enjoin state court proceedings to ‘protect or
effectuate its judgments[ ]’ is known as the relitigation excep-
tion.” Blalock, 982 F.2d at 375. We must first examine
whether there could be a conflict between a state court judg-
ment and the prior federal judgment. Id. If a conflict is possi-
ble, an injunction may issue. Id. (citing Chick Kam Choo v.
Exxon Corp., 486 U.S. 140, 150-51 (1988). A conflict is only
possible, however, where the federal court has actually
decided the claims or issues presented in the subsequent state
action. See Blalock, 982 F.2d at 376. “[T]his prerequisite is
strict and narrow.” Chick Kam Choo, 486 U.S. at 148.
[3] Here, BNSF argues that the private property owners’
investigation and restoration claim is identical to the State’s
earlier claim under Montana’s CECRA in federal court. The
Montana Supreme Court addressed, and rejected, this argu-
ment in Sunburst School District No. 2 v. Texaco, Inc., 338
Mont. 259 (2007). In Sunburst, plaintiffs sought restoration
damages after a gasoline refinery polluted soil and groundwa-
ter. See Sunburst, 338 Mont. at 259. The Montana Supreme
Court held that the Sunburst plaintiffs’ private interests dif-
fered from potential State claims under Montana’s CECRA:
CECRA’s focus on cost effectiveness and limits on
health-based standards differ from the factors to be
considered in assessing damages under the common
law. Nothing in CECRA preempts a common law
claim that seeks to recover restoration damages to
remediate contamination beyond the statute’s health-
based standards. We conclude that no conflict exists
between [the Montana Department of Environmental
MONTANA v. BNSF RAILWAY COMPANY 17999
Quality]’s supervisory role under CECRA and resto-
ration damages awarded under the common law. We
further conclude that nothing in CECRA precludes a
common law claim by necessary implication.
Sunburst, 338 Mont. at 278.
BNSF argues that Shammel v. Canyon Res. Corp., 338
Mont. 541 (2007), excludes “community” cleanups from the
common law claims protected in Sunburst. We disagree. Sun-
burst itself involved “community” cleanup of (1) a school sit-
uated upon public lands and (2) approximately ninety homes.2
See Sunburst, 338 Mont. at 263. The only potential distinction
between Sunburst and Shammel is whether the plaintiffs own
all of the property in need of restoration. Shammel, 338 Mont.
at 544. As the Montana Supreme Court held, this possible dif-
ference is “without significance,” and has no bearing on the
private nature of the claims asserted. Id. Sunburst applies to
the Livingston plaintiffs’ restoration claim brought here.
[4] Under Sunburst, the Livingston plaintiffs’ claim is not
precluded by or identical to the State’s earlier claim under
Montana’s CECRA. Thus, because the State’s CECRA claim
in federal court is distinct from the Livingston plaintiffs’ cur-
rent claim in state court, the earlier federal action has not
decided the issues presented by the subsequent state claim,
and there can be no conflict.
[5] “[E]ven if no actual conflict is possible, [an] injunction
could still be proper if res judicata would bar the state court
proceedings.” Blalock, 982 F.2d at 375. Res judicata applies
when there is “(1) an identity of claims, (2) a final judgment
on the merits, and (3) privity between parties.” Tahoe-Sierra
2
As the Sunburst court acknowledged, underground plumes of pollution
almost always cross property boundaries. See Sunburst, 338 Mont. at 272.
Any cleanup of such plumes could therefore be characterized as a “com-
munity” cleanup.
18000 MONTANA v. BNSF RAILWAY COMPANY
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1077 (9th Cir. 2003). Having determined that the Liv-
ingston plaintiffs’ claim is distinct from the State’s CECRA
claim, we have therefore also established that there is no iden-
tity of claims here. Accordingly, res judicata does not apply.
Thus, we need not address the finality of the consent decree
or whether there is privity between the State and the Living-
ston plaintiffs. In short, the Anti-Injunction Act controls.3
AFFIRMED.
3
If an exception to the Anti-Injunction Act applied, we would review
the district court’s decision whether to issue an injunction for abuse of dis-
cretion. California v. Randtron, 284 F.3d 969, 974 (9th Cir. 2002). “The
requirements for the issuance of a permanent injunction are (1) the likeli-
hood of substantial and immediate irreparable injury, and (2) the inade-
quacy of remedies at law.” G.C. and K.B. Invs., Inc. v. Wilson, 326 F.3d
1096, 1107 (9th Cir. 2003). We must defer to the district court’s interpre-
tation of a consent decree. Randtron, 284 F.3d at 976. Were we to reach
the issue, we would conclude that the district court did not abuse its dis-
cretion in refusing to enjoin state proceedings.