Hi Tech Trans LLC v. State of NJ

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

9-2-2004

Hi Tech Trans LLC v. State of NJ
Precedential or Non-Precedential: Precedential

Docket No. 03-2773

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 PRECEDENTIAL SCHILLER, District Judge*

UNITED STATES COURT OF Argued: September 19, 2003
APPEALS
FOR THE THIRD CIRCUIT (Filed: September 2, 2004)

ANDREW L. INDECK, ESQ. (Argued)
Scarinci & Hollenbeck, LLC
Nos: 03-2773/2849 1100 Valley Brook Avenue
Lyndhurst, NJ 07071
HI TECH TRANS, LLC; DAVID Attorneys for Appellants
STOLLER,
PETER C. HARVEY, ESQ.
Appellants Attorney General of New Jersey
ANDREA M. SILKOWITZ, ESQ.
Assistant Attorney General
v. JAMES H. MARTIN, ESQ. (Argued)
Deputy Attorney General
STATE OF NEW JERSEY, R. J. Hughes Justice Complex
DEPARTMENT OF 25 Market Street
ENVIRONMENTAL PROTECTION; P.O. Box 112
WOLFGANG SKACEL, C.H.M.M.*; Trenton, NJ 08625
BRADLEY M. CAMPBELL* Attorneys for Appellees

*(Amended in accordance with Clerk's
Order dated 7/22/03)
OPINION

Appeal from the United States District
Court
for the District of New Jersey McKEE, Circuit Judge.
(D.C. Civil No. 03-cv-02751)
Hi Tech Trans, LLC, which
District Judge: Hon. Faith S. Hochberg
operates a solid waste disposal facility in
Newark, New Jersey, and its Chairman and
Chief Executive Officer, David Stoller
(hereinafter collectively referred to as “Hi
Before: McKEE and SMITH, Circuit
Judges, and
*
Honorable Berle M. Schiller, U.S.
District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Tech”), sought declaratory relief against an I. BACKGROUND
administrative enforcement proceeding the
A. New Jersey’s Regulatory Scheme
New Jersey Department of Environmental
Protection (“NJDEP”) brought against Hi New Jersey has established a
Tech. Hi Tech claimed that certain permit comprehensive statutory scheme for
and license requirements imposed on solid regulating solid waste disposal based upon
waste disposal facilities by the New Jersey a legislative determination that “disposal
Solid Waste Management Act (“SWMA”), and utilization of solid waste is a matter of
N.J.S.A. 13:1E-1 to -207, and its grave concern . . . and . . .that the health,
implementing regulations1 are preempted safety and welfare of the people of [New
because its solid waste disposal facility Jersey] require efficient and reasonable
involves transportation by railroad and is solid waste collection and disposal service
therefore subject to the exclusive or efficient utilization of such waste.”
jurisdiction of the Surface Transportation N.J.S.A. 13:1E-2(a).
Board (“STB”).2 The district court did
The collection, transportation,
not directly address the merits of Hi
transfer, processing and disposal of solid
Tech’s preemption argument. Rather, the
waste is regulated by the SWMA and
court invoked the doctrine of abstention
corresponding regulations located at
under both Burford v. Sun Oil Co., 319
N.J.A.C. 7:26-1.1 et seq. The SWMA
U.S. 315 (1943), and Younger v. Harris,
grants the NJDEP the authority to regulate
401 U.S. 37 (1971), and dismissed the
all solid waste facilities and register all
complaint. Hi Tech now appeals the
persons engaged in the collection or
dismissal of its declaratory action.
disposal of solid waste. N.J.S.A. 13:1E-
Although our analysis differs from the
2(b)(6), N.J.S.A. 13:1E-4(a). In its
analysis the district court relied upon, for
regulatory capacity, NJDEP can impose
the reasons the follow, we will affirm.3
liability on any “person” who violates the
SWMA or the solid waste regulations.
1
See N.J.A.C. 7:26-1.1 et seq. N.J.S.A. 13:1E-9(b). Regulations define a
“ pe r son” to includ e indiv iduals ,
2
As we will discuss below, the STB is corporations and corporate officials.
the federal agency having exclusive N.J.A.C. 7:26-1.4. “Solid Waste” is
jurisdiction over rail transportation. defined broadly to include waste material
Friends of the Atglen-Susquehanna Trail, that is stored or deposited in a manner that
Inc. v. Surface Transportation Board, 252 “such material or any constituent thereof
F.3d 246, 250 n.1 (3d Cir. 2001). may enter the environment or be emitted
into the air or discharged into ground or
3
We may affirm for any reason
supported by the record, even if the
grounds we rely upon differ from the Nicini v. Morra, 212 F.3d 798, 805 (3d
grounds the district court relied upon. Cir. 2000).

2
surface waters.” N.J.A.C. 7:26-1.6© ), New Jersey law states that no “person”
N.J.A.C. 7-26-2.13(g)(1)(iii). Hi Tech’s may operate a solid waste disposal facility.
OIRY facility is a “Solid waste facility” . . without first obtaining a certificate of
under the SWMA.5 It also constitutes a public convenience and necessity. N.J.S.A.
“transfer station” under the SWMA.6 48:13A-6.8 A person operating a solid
waste facility in violation of that
New Jersey’s enviro nmental
requirement is subject to fines ranging
regulatory scheme prohibits “construction
from $10,000 for a first offense, to not
or operation of a solid waste facility
more than $50,000 for a third or
without first obtaining a Solid Waste
subsequent offense. N.J.S.A. 48:13A-
Facility (“SWF”) Permit unless exempted
12(b).
pursuant to N.J.A.C. 7:26-1.1, -1.7 or -
1.8.” 7 In addition to requiring a SWF, B. Hi Tech’s Business

5
The statute defines a “solid waste N.J.A.C. 7:26-5.4(g)(2), and each day a
facility” to include any site or building violation continues constitutes a separate
used for the “storage, collection, and distinct offense. N.J.S.A. 13:1E-9(e).
processing, transfer, transp ortation, 8
N.J.S.A. 48:13A-6 provides in
separation, recycling, recovering or
pertinent part:
disposal” of solid waste material. N.J.A.C.
7-26-1.4.
No person shall engage, or be permitted to
6
A “transfer station” is defined as “a engage, in the business of solid waste
solid waste facility at which solid waste is collection or solid waste disposal unless
transferred from one solid waste vehicle to found . . . to be qualified by experience,
another solid waste vehicle, including a training or education to engage in such
rail car, for transportation to an off-site business, is able to furnish proof of
solid waste facility, or a solid waste financial responsibility, and unless that
facility at which [certain kinds of] liquid person holds a certificate of public
waste (as defined at N.J.A.C. 7:26-2.13(h)) convenience and necessity. . . .
is received, stored, treated or transferred[].
. . . ” N.J.A.C. 7:26-1.4. In order to obtain that certificate, an
applicant must disclose the names and
7
A “[s]olid waste facility permit” or a addresses of all persons with a legal or
“SWF permit” is “a certificate of approved beneficial interest in the applicant’s
registration and engineering design business. N.J.A.C. 7:26H-1.8(a)(1). The
approval for a nonhazardous solid waste applicant must also give appropriate
facility. N.J.A.C. 7:26-1.4 The minimum information regarding his/her skill,
mandatory penalty for operating a solid experience or education and financial
waste facility without a permit is $5,000, responsibility. N.J.A.C. 7-26H-1.8(a)(2)

3
 Hi Tech’s principal place of License Agreement limits Hi Tech to using
business is located at the Oak Island Rail “the Premises only for the transfer of
Yard (“OIRY”), in Newark, New Jersey. Waste Products from truck to railcars
David Stoller is Chairman and CEO of Hi operated by CPR.”
Tech. In 1990, the Canadian Pacific
Hi Tech began operations at the
Limited, now known as the Canadian
facility (which it refers to as the
Pacific Railroad (“CPR”), purchased the
“Transload Facility”), on September 17,
assets and “trackage rights” of the former
2001. Hi Tech’s Transload Facility
Delaware and Hudson Railway Company.9
operates as follows: (1) trucks hauling
Those assets included trackage rights into
C&D waste arrive at the facility; (2) the
the OIRY.
trucks discharge C&D into a hopper that
On November 6, 2000, CPR and Hi Hi Tech provides at the facility; and (3) the
Tech entered into a License Agreement C&D waste is then loaded directly into rail
whereby Hi Tech agreed to develop and cars from the hoppers. C&D waste is
operate a construction and demolition neither stored nor processed at the facility.
debris (“C&D”) bulk waste loading facility Once the rail cars have been filled, CPR
at the OIRY.10 Paragraph 4(a) of the transports them exclusively to out-of-state
disposal facilities.

9
C. The NJDEP Investigation at OIRY
“Trackage rights agreements are
arrangements by which one railroad On April 16, 2003, NJDEP
company allows another to use its railroad investigators conducted a site visit at the
tracks. These agreements can take one of Hi Tech facility at OIRY. While there,
two different forms. The owner railroad they saw solid waste origin/disposal
may allow the tenant railroad to serve
freight customers along the leased track or
may limit the tenant railroad to use of the
track from one point to another,
withholding permission to serve customers demolition debris (“C&D”)
along the route.” Illinois Commerce and non-hazardous
Comm. v Interstate Commerce Comm., contaminated soils (“Soils”),
819 F. 2d 311, 313 (D.C. Cir., 1987). and intermodal transloading
of containerized sludges and
10
The Agreement provided in relevant solid waste (“Containerized
part that: Waste”) (C&D, Soils and
Containerized Waste are
CPR desires to utilize a herein afte r colle ctively
portion of the Railyard . . . referred to as “Waste
for the transloading of non- Products”) . . . .
hazardous construction and

4
(“O&D”) forms11 and weigh tickets taken C&D (ID #13C) and bulky waste (ID #13)
in and generated for solid waste loads were thereafter observed entering the
accepted that day. All loads were facility and proceeding to the inbound
classified on the O&D forms as either ID scale. The trucks went to the “east box”12
# 13 or ID #13C. See note 11. to dump their loads of solid waste and
thereafter a crane loaded the waste into a
Records i n d i c at e d t h at
waiting open-top rail car. Loads were
approximately 12 “roll-off vehicles” had
visually inspected prior to dumping, and
delivered solid waste to the facility for
the crane operator had a full view of what
transfer from Hi Tech’s facility prior to the
was being dumped out of the roll-off
NJDEP’s investigators’ arrival on April
container.
16, 2003.
After dumping and leaving the “east
Before Joseph Levy, Hi Tech’s
box” area, trucks crossed the railroad
general manager, arrived at the facility, the
tracks and proceeded to “weigh out” at the
investigators also observed 4 loaded
outbound scale. There, drivers turned in
gondola rail cars containing bulky waste
O&D forms and signed off on scale tickets
materials such as plaster, lathe, treated
painted wood, plastic bags, cardboard,
drywall, and sheet metal. The 12
The “east box” refers to a roofless
investigators met with Levy and asked him
dumping area with approximately 12' high
to accompany them to observe the actual
metal sides observed to be active during
“tipping operation” and to answer
the inspection. The “west box” is a
questions regarding the operation.
dumping area which was not active during
Inbound roll-off trucks transporting the inspe ct io n , a lt ho u gh N JD E P
investigators observed and photographed
several cubic yards of demolition waste
11
Solid waste facilities are required to present in the west box. Both dumping
maintain waste origin/disposal records for areas are similarly constructed with an
each load of waste received by waste type earthen/C&D ramp on which the grappler
ID number. N.J.A.C. 7:26-2.13(g). “Type operates to load the deposited waste into
13" is “Bulky waste: Large items of waste adjacent gondola rail cars. Likewise, each
material, such as appliances and furniture.” dumping area has 1" steel plate bottom
N.J.A.C. 7:26-2.13(g)(iii). “Type 13C” is area onto which waste is deposited. A
“Construction and demolition waste: steel frame ramp with wooden slats was
Waste building material and rubble observed constructed at each dumping area
resulting from construction, remodeling, to accommodate roll off trucks. A lower
repair, and demolition operations on dumping area (at ground level) was
houses, commercial buildings, pavements, observed at each dumping area to
and other structures.” N.J.A.C. 7:26- accommodate larger transfer trailers and
2.13(g)(iv). the overflow traffic of roll off vehicles.

5
prior to leaving the site. During the several penalty was assessed, but Hi Tech and
minutes that investigators observed this Stoller were ordered to cease solid waste
operation, they saw several roll-off operations within twenty days.
containers from various commercial and
The Order was served upon Hi
non-commercial solid waste haulers dump
Tech and Stoller on May 28, 2003, with an
loads into the east box before the crane
effective date of June 17, 2003. As will be
loaded that waste into a waiting rail car.
detailed later, Hi Tech and Stoller filed a
They also saw approximately 15 loads
complaint in the district court on June 6,
(approximately 375 cubic yards) of ID
2003, seeking, a declaration that state
#13 or ID #13D solid waste tipped for
regulation of the OIRY facility was
transfer at the facility.
preempted by federal law. However, as of
Based upon this investigation, the June 16, 2003, the day the district court
NJDEP determined that Hi Tech was dismissed the complaint, Hi Tech and
operating a transfer station, and that OIRY Stoller had not availed themselves of their
was a “solid waste facility.” As noted right to request either an administrative
above, solid waste facilities require solid hearing, a stay from the NJDEP, or any of
waste facility permits and NJDEP approval the other relief afforded under New
of engineering designs. Based upon Jersey’s Administrative Procedure Act.14
observations during the site visit, the
NJDEP issued an Administrative Order
after determining that Hi Tech was stated that Stoller was in violation of
operating the facility without the required N.J.A.C. 7:26-2.8(f) (failure to obtain a
permits, registration, or design approvals SWF permit prior to constructing or
and that Hi Tech was therefore operating operating a solid waste facility); and
the facility in violation of N.J.A.C. 7:26- N.J.A.C. 7:26H-1.6(a) (failure to obtain a
2.8(f). The Administrative Order also Certificate of Public Convenience and
charged that Hi Tech was operating in Necessity prior to engaging in the business
violation of N.J.A.C. 7:26H-1.6(a) because of solid waste disposal).
it was engaging in the business of solid
14
waste disposal without a Certificate of New Jersey’s Administrative
Public Convenience and Necessity.13 No Procedure Act, N.J.S.A. 52:14B-1, sets
forth the procedures to be followed in the
initial adjud icatory phase of an
13
The Administrative Order also administrative procedure wherein the
determined that David Stoller, as NJDEP will exercise its quasi-judicial
Chairman and CEO of Hi Tech, had actual function to determine the allegations set
responsibility for the operation of the forth in the administrative cease and desist
illegal solid waste facility and could have order. A party may take an appeal as of
prevented the violation but failed to do so. right to the Superior Court of New Jersey,
Accordingly, the Administrative Order Appellate Division, for review of final

6
Instead, they waited until June 17, 2003, NJDEP filed exceptions to that Initial
the day after the district court dismissed Decision on August 25, 2003.
the complaint in this case, and then sought
In his Final Decision, the
a hearing and stay from the NJDEP.
Commissioner of E nviro nm enta l
On June 30, 2003, Bradley Protection of the State of New Jersey
Campbell, New Jersey’s Commissioner of reversed the ALJ’s decision and held
Environmental Protection, ordered “that instead that Hi Tech’s facility was not
the Office of Solid Waste Compliance and subject to the exclusive jurisdiction of the
Enforcement shall forbear from seeking STB and that NJDEP’s authority was
judicial enforcement of the cease and therefore not preempted. Accordingly, Hi
desist order for a period of 60 days, or Tech was ordered to immediately cease
until further order of the Department and desist its operations at the OIRY.
vacating or amending this order for State of New Jersey, Department of
emergency relief, to enable [Hi Tech and Environmental Protection v. Hi Tech
S t o l l e r ] t o o b t a i n a p p r o p r i a te Trans, LLC, Final Decision, OAL Docket
administrative due process on an expedited No. ESW 05815-03 (September 29,
basis pursuant to the Administrative 2003). 15
Procedure Act.”
II. DISTRICT COURT
As noted, on June 17, 2003, Hi PROCEEDINGS
Tech requested an administrative hearing
On June 6, 2003, Hi Tech filed the
to contest the administrative cease and
instant complaint against the NJDEP in
desist order. Thereafter, the Acting Chief
United States District Court for the District
Administrative Law Judge of the State of
of New Jersey. Hi Tech sought a
New Jersey issued an Initial Decision in
declaration that state laws requiring solid
which he accepted Hi Tech’s argument
waste transfer stations like the OIRY to
that it was involved in transportation by
obtain a solid waste facility permit and a
railroad and was, therefore, subject to the
exclusive jurisdiction of the STB. State of
New Jersey, Department of Environmental 15
On June 11, 2004, the Appellate
Protection v. Hi Tech Trans, LLC, OAL
Division of the Superior Court of New
Docket No. ESW 05815-03 (N.J. Office of
Jersey affirmed the Final Decision. State
Administrative Law Aug. 13, 2003). The
o f New Jerse y, De partm ent o f
Environmental Protection v. Hi Tech
Trans, LLC, No. A-29-03T3, (N.J. Super.
action of any state administrative agency Ct. App. Div. June 11, 2004) (per curiam).
or officer and for review of the validity of Hi Tech has filed a Notice of Appeal and
any rule promulgated by any state agency a Notice of Petition for Certification to
or officer. See N.J. Court Rule 2:2- Appeal the Appellate Division’s decision
3(a)(2). to the Supreme Court of New Jersey.

7
certificate of public convenience and “that [New Jersey] can take no action to
necessity, are preempted as applied to Hi enforce [its] law against [Hi Tech] . . .
Tech. Based upon its preemption unless that action has been authorized by
argument, Hi Tech also sought appropriate the Surface Transportation Board.” Id. at
equitable relief including a preliminary 31.
injunction barring NJDEP from enforcing
On June 20, 2003, the district court
provisions of state law relevant to
dismissed the amended complaint on
NJDEP’s purported regulatory authority
grounds of Burford and Younger
over Hi Tech and its OIRY based upon Hi
abstention, and this appeal followed.17
Tech’s claim of preemption. The NJDEP
responded by arguing that the district court III. JURISDICTION
should abstain, and that the court lacked
Hi Tech contends that we have
jurisdiction pursuant to the Eleventh
appellate jurisdiction under 28 U.S.C. §
Amendment. 16 The district court
1292(a)(1) because the district court’s
agreed with Hi Tech’s Eleventh
dismissal of its amended complaint
Amendment argument and dismissed the
pursuant to Younger and Burford
complaint, but Hi Tech filed an amended
abstention principles amounts to a denial
compliant the same day naming two
of its request for preliminary injunctive
individual defendants in their official
relief. Although we do not agree that we
c apacities: B r ad le y C amp bell ,
have jurisdiction pursuant to § 1292(a)(1),
Commissioner of NJDEP, and Wolfgang
w e n e v e r t h el e ss h a v e a p pe l l at e
Skacel, Director of the Office of Solid &
jurisdiction.
Hazardous Waste Compliance and
Enforcement of the NJDEP. The amended A Burford abstention order is a
complaint essen tially repea ted the final, appealable order under § 1291
allegations of the dismissed complaint. Hi because the district court dismisses the
Tech’s entire basis for relief was its claim case and consigns it to the state system.
that its facility is subject to the exclusive Riley v. Simmons, 45 F.3d 764, 770-771
“authority of the Surface Transportation (3d Cir. 1995). At one time we suggested
Board . . . .” App., vol. II, at 30. Hi Tech that a Younger abstention order deferring
thus requested a declaratory judgment to state administrative proceedings may
affirming that its operations are “exempt not be a final order if the state
from [New Jersey’s] administrative administrative proceeding cannot give the
permitting and licensing regulations[]” and plaintiff all of the requested relief but

16 17
The NJDEP also argued that Hi Tech Hi Tech does not contest the district
failed to make the threshold showing court’s holding that the Eleventh
required as a condition precedent to Amendment bars its suit against the
preliminary injunctive relief. NJDEP.

8
federal law can. See Williams v. Red Bank “The Supremacy Clause18 allows
Bd. of Ed., 662 F.2d 1008 (3d Cir. 1981), Congress to preempt state legislation if it
overruled on other grounds as recognized so intends.” Olde Discount Corp. v.
in Schall v. Joyce, 885 F.2d 101 (3d Cir. Tupman, 1 F.3d 202, 206 (3d Cir. 1993)
1989). However, in Quackenbush v. (citation om itted ). H ow eve r, a
Allstate Ins. Co., 517 U.S. 706, 713 “preemption analysis should be ‘tempered
(1996), the Supreme Court concluded that by the conviction that the proper approach
abstention stay orders are appealable is to reconcile the operation of both
because they put the “litigants ‘effectively statutory schemes with one another rather
out of court[.]’ ” The prevailing view now than holding one completely ousted.’”
is “that for all of the abstention doctrines, F o r d M o t o r C o . v . In s u r a n c e
a federal court’s decision to abstain is Commissioner of the Commonwealth of
immediately appealable, but its refusal to Pennsylvania, 874 F.2d 926, 936 (3d Cir.
abstain is not appealable until there is a 1989) (citing Merrill Lynch v. Ware, 414
final judgment.” Erwin Chemerinsky, U.S. 117, 127 (1973)).
Federal Jurisdiction, § 12.3 at 768.
The Supreme Court has
IV. CONTROLLING LEGAL recognized three general
PRINCIPLES. ways in which federal law
may preempt, and thereby
Hi Tech claims that its solid waste
displace, state law: (1)
disposal activities in the OIRY facility are
‘express preemption,’ which
subject to the exclusive jurisdiction of the
arises when there is an
Surface Transportation Board. According
explicit statutory command
to Hi Tech, any state regulation of its
that state law be displaced;
operations at the OIRY facility is therefore
(2) ‘field preemption,’
preempted by federal law. In Hi Tech’s
which arises when federal
view, since state law is preempted by the
law so thoroughly occupies
federal regulatory scheme enforced by the
a legislative field as to make
STB, the district court erred in abstaining,
reasonable the inference the
and should have instead granted the
Congress left no room for
requested declaratory relief and issued a
the States to supplement it;
preliminary injunction. Before turning to
and (3) ‘conflict
the merits of Hi Tech’s preemption
argument, it will be helpful to first discuss
the principles of preemption and 18
In relevant part, the Supremacy
abstention. Clause provides that the “Constitution, and
A Preemption. the Laws of the United States which shall
be made in Pursuant thereof . . . shall be
the supreme Law of the Land . . . .” U.S.
Const. Art. VI cl.2.

9
 preemption,’ which extraordinary and narrow exception to the
arises when a state ‘virtually unflagging obligation of the
law makes it federal courts to exercise the jurisdiction
impossible to comply given them.’ ” Id. (quoting Colorado River
with both state and Water Conservation Dist. v. United States,
federal law or when 424 U.S. 800, 817 (1976)). Consequently,
the state law stands abstention is justified “only in the
as an obstacle to the exceptional circumstances where the order
accomplishment and to the parties to repair to the State court
execution of the full would clearly serve an important
purposes and countervailing interest.” Id. (citation
objectives of omitted). In other words, “[a]bstention
Congress. from the exercise of federal jurisdiction is
appropriate only under certain limited
circumstances.” Chez Sez III Corp. v.
The St. Thomas – St. John Hotel and Township of Union, 945 F.2d 628, 630 (3d
Tourism Assoc., Inc. v. Gov’t of the United Cir. 1991) (citation omitted). Those
States Virgin Islands, 218 F.3d 232, 237-8 circumstances “are loosely gathered under
(3d Cir. 2000) (citations and most internal discrete concepts of abstention named after
quotations omitted). Since “[p]reemption l e a d in g S u p r e m e C o u r t C a s e s , ”
is based on the Supremacy Clause of the Chiropractic America v. LaVecchia, 180
United States Constitution, [it] does indeed F.3d 99, 103 (3d Cir. 1999), viz.,
raise a constitutional challenge which “Pullman” (Railroad Comm’n of Texas v.
draws the abstention doctrine to the Pullman, 312 U.S. 496 (1941)); “Burford”
forefront of our consideration.” Zahl v. (Burford v. Sun Oil Co., 319 U.S. 315
Harper, 282 F.3d 204, 208 (3d Cir. 2002). (1943)); “Younger” (Younger v. Harris,
. 401 U.S. 37 (1971)); and “Colorado
R i v e r ” ( C o l o r a d o R i v e r W a te r
B. Abstention.
Conservation District v. United States, 424
“Abstention is a judicially created U.S. 800 (1976)). As we noted at the
doctrine under which a federal court will outset, this appeal involves both Burford
decline to exercise its jurisdiction so that a and Younger abstention.
state court or agency will have the
(1). Burford abstention.
opportunity to decide the matters at issue.”
Kentucky West Virginia Gas Co. v. “In Burford, the Supreme Court
Pennsylvania Public Utility Commission, stated that a federal court should refuse to
791 F.2d 1111, 1114 (3d Cir. 1986) exercise its jurisdiction in a manner that
(citation omitted). The doctrine is rooted would interfere with a state’s efforts to
in concerns for the maintenance of the regulate an area of law in which state
federal system and “represents an interests predominate and in which

10
adequate and timely state review of the 491 U.S. 350, 361 (1989)(quoting
regulatory scheme is available .” Colorado River Water Conservation
Chiropractic America v. LaVecchia, 180 District v. United States, 424 U.S. at 814).
F.3d at 104 (citing Burford v. Sun Oil Co., Burford abstention therefore “calls for a
319 U.S. at 332-334). The purpose of two-step analysis.” Riley v. Simmons, 45
Burford is to “avoid federal intrusion into F.3d 764, 771 (3d Cir. 1995)(citing New
matters of local concern and which are Orleans Publ. Serv. Inc., at 361). “The
within the special competence of local first question is whether timely and
courts.” Id. (citation omitted). The adequate state law review is available.”
Supreme Court has “provided a clear Id. (citation omitted). “Only if a district
definition of the Burford doctrine.” court determines that such review is
Chiropractic America, 180 F.3d at 104. In available, should it turn to other issues and
New Orleans Pub. Serv., Inc. v. Council of determine if the case before it involves
the City of New Orleans (“NOPSI”), the difficult questions of state law impacting
Court wrote: on the state’s public policy or whether the
district court’s exercise of jurisdiction
Where timely and adequate
would have a disruptive effect on the
state-court review is
state’s efforts to establish a coherent
available, a federal court
public policy on a matter of important state
sitting in equity must
concern.” Id.
decline to interfere with the
proceedings or orders of The second prong of the
state administrative Burford doctrine, as refined in NOPSI,
agencies: (1) when there are requires a court to examine three issues:
"difficult questions of state “(1) whether the particular regulatory
law bearing on policy scheme involves a matter of substantial
problems of substantial public concern; (2) whether it is the sort of
p u b l i c i mp o rt w ho s e complex technical regulatory scheme to
importance transcends the which the Burford abstention doctrine
result in the case then at usually is applied; and (3) whether federal
bar"; or (2) where the review of a party’s claims would interfere
"exercise of federal review with the state’s efforts to establish and
of the question in a case and maintain a coherent regulatory policy.”
in similar cases would be Chiropractic America, 180 F.3d at 105.
disruptive of state efforts to
(2). Younger abstention.
establish a coherent policy
with respect to a matter of Younger abstention is similar in that
substantial public concern. it “espouse[s] a strong federal policy
against federal court interference with
pending state judicial proceedings absent

11
extraordinary circumstances.” Middlesex including administrative proceedings.
County Ethics Commission v. Garden
The Court has set out a three-part
State Bar Assoc., 457 U.S. 423, 431
test for determining whether Younger
(1982). “The policies underlying Younger
abstention is appropriate: “[a]bstention is
abstention have been frequently reiterated”
appropriate when: (1) there is a pending
by the Court. Id. “The notion of comity
state judicial proceeding; (2) the
includes a proper respect for state
proceeding implicates important state
functions, a recognition of the fact that the
interests; and (3) the state proceeding
entire country is made up of a Union of
affords an adequate opportunity to raise
separate state governments, and a
constitutional challenges.”
continuance of the belief that the National
Government will fare best if the States and Id., at 209 (citing Garden State, 457 U.S.
their institutions are left free to perform at 432). “Even if this test is met, however,
their separate functions in their separate abstention is not appropriate if the plaintiff
way,.” id., (citations and internal quotation e stab l i sh e s t h a t ex t r a o rd i n a ry
marks omitted), as long as they can do so circumstances exist such that deference to
without contravening the supremacy of the state proceeding will present a
federal law. “Minimal respect for the state significant and immediate potential for
processes, of course, precludes any irreparable harm to the federal interests
presumption that the state courts will not asserted.” Id., at 210 (citation, ellipses and
safeguard constitutional rights.” Id. internal quotation marks omitted).
(emphasis in original).
V. DISCUSSION
In Younger, the district court
Hi Tech insists that the district
enjoined the Los Angeles County District
court erred in abstaining in favor of the
Attorney from prosecuting the defendant
state regulatory process because the court
under a constitutionally-suspect state
was confronted with a preemption claim
statute. The Supreme Court reversed,
arising from its rail activity.
finding that the district court’s injunction
was “a violation of the national policy A. Hi Tech’s Preemption claim.
forbidding federal courts [from] stay[ing]
In 1995, Congress enacted the
or enjoin[ing] pending state court
I nte rsta te Commer ce C om missio n
proceedings except under spec ial
Termination Act (“ICCTA”), Pub. L. No.
circu mstances.” 401 U.S. 37, 41.
104-88, 109 Stat. 803 (1995) (codified as
“Although Younger involved a state court
amended at various locations in 49 United
criminal proceeding, the national policy
States Code), which abolished the
against enjoining pending state court
Interstate Commerce Commission (“ICC”)
proceedings has since been extended to
and created the Surface Transportation
noncriminal judicial proceedings.” Zahl,
Board, Friends of the Altgen-
282 F.3d at 208 (citation omitted),
Susquehanna Trail, 252 F.2d at 250 n.1, an

12
independent agency within the Department n.7. Hi Tech has not offered anything to
of Transportation. Commonwealth of demonstrate that the court’s conclusion
Pennsylvania v. Surface Transportation that Hi Tech “never obtained status as a
Board, 290 F.3d 522, 525 (3d Cir. 2002). rail carrier” is erroneous. Indeed, in a
The ICCTA provides that the STB “would related case, the district court held that Hi
perform all the functions that previously Tech is not a “rail carrier” within the
were performed by the ICC as of the meaning of the ICCTA. Hi Tech Trans,
effective date of the Act.” Id. at 525 n.3 LLC v. Hudson County Improvement
(citation omitted). Accordingly, the STB Authority, No. 02-3781, slip op. at 2-3
“perform[s] the core rail and trucking (D.N.J. Apr. 2, 2003). Given the nature of
responsibilities formerly conducted by the its loading activities, that holding is not
ICC.” Peter A. Pfohl, Who Should Pay surprising.
For Agency Adjudication? A Study of
Hi Tech nevertheless claims that it
$200,000 Filing Fees at the Surface
is subject to the exclusive jurisdiction of
Transportation Board, 25 Transp. L. J. 57,
the STB because its facility falls under the
59 (1997). Under the ICCTA, the STB
ICCTA’s definitions of “transportation”
h a s e x c l u s iv e j u r is d i c ti o n o v er
and “railroad.” In Hi Tech’s view, because
“transportation by rail carrier” and its
it falls under both definitions, its facility is
regulation of rail carriers preempts state
subject to the STB’s exclusive jurisdiction
regu latio n wit h r e s p e c t t o r a il
and, therefore, New Jersey’s SWMA and
transportation. 49 U.S.C. § 10510(b).
its implementing re gulations are
The ICCTA defines a “rail carrier” preempted as applied to it. It submits:
as a “person providing common carrier
Hi Tech operates a
railroad transportation for compensation.”
“railroad” insofar as it
49 U.S.C. § 10102(5). There are formal
opera t e s i n t e rm o d a l
procedures that must be followed to obtain
equipment used by or in
the STB’s authorization to act as a rail
connection with a railroad
carrier. See 49 U.S.C. § 10910. This
and operates a terminal
record establishes that Hi Tech has never
facility and yard and ground
received such formal certification from the
used for transportation. Hi
STB. The district court notes that “on July
T e c h p r o v i d e s
3, 2000, Hi Tech filed a Notice of
“transportation” insofar as it
Exemption in accordance with 49 C.F.R. §
provides a yard, property,
1150.32 in an attempt to ‘commence
facility and equipment
common carrier rail service over 641 miles
related to the movement of
of Canadian Pacific rail track, [but] Hi
property by rail and services
Tech withdrew its Notice of Exemption on
relating to that movement.
July 17, 2000, and has never obtained
When taken together, Hi
status as a rail carrier.” App., vol. I, at 10
Tech’s facility and activity

13
 fall directly within whether to abstain from resolving issues of
the definitions set preemption. For example, in Olde
forth in the ICCTA Discount Corp., we stated “a claim of
and the regulations federal preemption, in and of itself, is not
thereof by state and entitled to more deferential treatment than
local authorities is other constitutional claims in the face of an
expressly preempted. abstention challenge.” 1 F.3d at 214.
Thus, the STB, by
There, the district court enjoined
virtue of its exclusive
the Delaware Securities Commissioner
j u r is d ictio n o v e r
from seeking recission on behalf of
transportation by rail
investors who had signed an arbitration
carriers, has
agreement before the dispute arose. We
exclusive jurisdiction
had to address a question of preemption as
over Hi Tech and its
O l d e D i s c ount arg ued th at th e
regulation preempts
congressional policy favoring arbitration
state law.
underlying the Federal Arbitration Act
(“FAA”) preempted the Commissioner’s
right of recission under Delaware Law.
Hi Tech’s Br. at 18-19.
The case therefore presented “a novel
B. The Relationship Between question of the relationship between a
Abstention and Preemption Here. contracting party’s right to enforcement of
an arbitration agreement under the [FAA]
We are, of course, mindful that
and a state’s interest in pursuing a remedy
there is no absolute rule prohibiting
of rescission in an adm inistrative
abstention whenever a preemption claim is
proceeding.” 1 F.3d at 204. We affirmed
asserted. See, e.g., Ford Motor Co., 874
the district court’s injunction and rejected
F.2d at 934; Kentucy West Virginia Gas
Olde Discount’s contention that the district
Co., 791 F.2d at 1117. In NOPSI, the
court should have abstained in favor of the
Court stated, “[I]t is clear that the mere
proceedings in state court. In doing so, we
assertion of a substantial constitutional
focused on the centrality of the preemption
challenge to state action will not alone
claim stating, “[i]ndeed, the circumstances
c o m p e l the exerc ise of fed eral
presented make clear that a nonfrivolous
jurisdiction.” 491 U.S. at 365. That
claim of FAA preemption of a state
statement was, however, not part of the
remedy necessarily presents an exception
holding in NOPSI as the Court relied on
to the Younger doctrine.” Id., at 211. We
the fact that the state proceeding at issue
reasoned that “abstention in this case
there was not the kind of proceeding that
would be difficult to justify in light of the
can trigger abstention under Younger. See,
congressional intent reflected in [the
id., at 367. Nevertheless, this dicta in
FAA].” Id., at 21.
NOPSI has often guided courts in deciding

14
 Thereafter, in resolving the tension As Olde Discount and Ford Motor
between preemption and abstention in Co. illustrate, abstention is usually
Chiropractic America, we stated, “[o]ur inappropriate in such a case because
focus should not be on whether a federal “Supremacy Clause claims are essentially
claim has been presented, but rather on the ones of federal policy, so that the federal
nature of that claim.” 180 F.3d at 108 courts are particularly appropriate bodies
(emphasis in original). We added that for the application of preemption
“[c]ourts have held almost uniformly, for principles.” Chiropractic America, 180
example, that abstention is inappropriate F.3d at 108. Moreover, where the federal
when a federal plaintiff asserts a interest is so strong that it preempts state
preemption/Supremacy Clause claim.” Id.; law, there will rarely be a state interest
see also Kentucky West Virginia Gas Co., sufficient to justify a federal court’s
791 F.2d at 1115-16; Hotel & Restaurant decision to abstain from its “unflagging
Employees & Bartenders Int’l Local 54 v. obligation” to exercise its jurisdiction. See
Danziger, 709 F.2d 815, 832 (3d Cir. Colorado River Water Conservation Dist.
1983), vacated on other grounds, 468 U.S. v. United States, 424 U.S. 800, 817
491 (1984). (1976)).
Similarly, in Ford Motor Co., we This follows because “[a]bstention
addressed the propriety of abstention when is predicated solely upon the significance
balancing “the federal scheme designed to of the federal interest invoked.” Zahl, 282
assist the nation’s failing savings and loan F.3d at 210 (citation and internal
companies and the important state interest quotations omitted). Therefore, “[w]here
in regulating the state insurance industry.” ‘Congress has created a statutory scheme
874 F.2d at 928. We there held that, given . . . which arguably preempts the local
the pervasive federal regulation of regulation complained of, a fundamental
banking, abstention in favor of state law element of Burford abstention is thrown
was inappropriate. In doing so, we into doubt, for we must question whether
approvingly quoted the district court as the case indeed involves an essentially
follows: “‘ dispositive [of the issue] is a local issue.” Kentucky West Va. Gas Co.,
line of cases from the Courts of Appeals 791 F.2d at 1116. Moreover, abstention
for the Third, Eighth, and Eleventh under Younger can afford the Supremacy
Circuits that hold that there can be no Clause no less priority.
important state interests that the federal
Claims of federal preemption thus
court should defer to in enforcing a state
“require[] review of the state interest to be
law that has been preempted by federal
served by abstention, in tandem with the
law.’” 874 F.2d at 988. (Emphasis added)
federal interest that is asserted to have
(quoting Ford Motor Co., v. Insurance
usurped the state law.” Ford Motor Co.,
Commissioner of Pennsylvania, 672 F.
874 F.2d at 934. The “notion of comity, so
Supp. 841, 849-50 (E.D. Pa. 1987)).
central to the abstention doctrine, is not

15
strained when a federal court cuts off state interest justifying federal abstention.
proceedings that encroach upon the federal
As noted earlier, Hi Tech claims
domain.” Zahl, 282 F.3d at 210 (citation
that it is subject to the exclusive
and internal quotations omitted).
jurisdiction of the STB even though it is
Furthermore,
not certified as a “railcarrier” because its
[t]he determ ination of facility falls under the ICCTA’s definitions
whether abstention is proper of “transportation” and “railroad.
where preemption is alleged
“ [ T ]r a n s p o r t a t i o n ” is
does not rest upon whether
defined, under the ICCTA,
the preemption claim will
inter alia, as a
ultimately prevail.
Accordingly, just as the yard, property, facility,
presence of a claim of instrum entality, or
preemption will not equipment of any kind
preclude abstention in every related to the movement of
case, the decision that passengers or property, or
abstention is improper in both, by rail, regardless of
light of a claim of ownership or an agreement
preemption that has been concerning use; and . . .
asserted, need not result in services related to that
the finding that the state movemen t, includ ing
statute has in fact been receipt, delivery, transfer in
preempted. transit, refrigeration, icing,
v e n t i la t i o n, s t o r a g e ,
handling, and interchange of
Ford Motor Co., 874 F.2d at 935 n.12. passengers and property. . .
.”
Hi Tech’s claim is bottomed upon,
and limited to, its assertion that its
operations at the OIRY facility implicate
49 U.S.C. §§ 10102(9)(A), (B). Under the
the STB’s authority over railroads. Hi
ICCTA, a “railroad” is, inter alia,
Tech contends that this is therefore a case
“intermodal equipment used by or in
of express preemption given the statutory
connection with a railroad” and a
definitions of “transportation” and
“terminal facility, and a freight depot,
“railroad” contained in the ICCTA. Since
yard, and ground, used or necessary for
the Surface Transportation Board has
transportation .” 49 U.S.C . §§
e x c l u s iv e j u r i s d i c ti o n o v e r r a il
10102(6)(A), (c).
transportation, Friends of the Atglen-
Susquehanna Trail, 252 F.3d at 250 n.1, Even if we assume arguendo that
Hi Tech insists that there is no local Hi Tech’s facility falls within the statutory

16
definition of “transportation” and/or Accordingly, it is clear that Hi Tech
“railroad,” the facility still satisfies only a simply uses CPR’s property to load C&D
part of the equation. The STB has debris into/onto CPR’s railcars. The mere
exclusive jurisdiction over “transportation fact that the CPR ultimately uses rail cars
by rail carrier.” 49 U.S.C. § 10510(a), (b) to transport the C&D debris Hi Tech loads
(emphasis added). However, the most does not morph Hi Tech’s activities into
cursory analysis of Hi Tech’s operations “transportation by rail carrier.” Indeed, if
reveals that its facility does not involve Hi Tech’s reasoning is accepted, any
“transportation by rail carrier.” The most nonrail carrier’s operations would come
it involves is transportation “to rail under the exclusive jurisdiction of the STB
carrier.” Trucks bring C&D debris from if, at some point in a chain of distribution,
construction sites to Hi Tech’s facility it handles products that are eventually
where the debris is dumped into Hi Tech’s shipped by rail by a railcarrier. The
hoppers. Hi Tech then “transloads,” the district court could not accept the
C&D debris from its hoppers into rail cars argument that Congress intended the
owned and operated by CPR, the railroad. exclusive jurisdiction of the STB to sweep
It is CPR that then transports the C&D that broadly, and neither can we.
debris “by rail” to out of state disposal
However, as we noted at the outset,
facilities. As we noted above, Hi Tech
the district court stated that it was
operates its facility under a License
abstaining under Burford and Younger,
Agreement with CPR. Pursuant to the
and announced that it would therefore not
terms of that license agreement, Hi Tech is
decide Hi Tech’s action for declaratory
permitted to use a portion of CPR’s OIRY
relief. Nevertheless, it is clear from its
for transloading. Hi Tech is responsible
amended complaint that Hi Tech sought
for constructing and maintaining the
only a declaration that it is exempt from
facility and CPR disclaims any liability for
state regulations relating to its “intermodal
Hi Tech’s operations. License
rail operations.” App., vol. II, at 194. Hi
Agreement, ¶¶ 4(d), 7. Thus, the License
Tech included a request for “[s]uch other
Agreement essentially eliminates CPR’s
relief as this Court deems just and
involvement in, and responsibility for, the
equitable.” Id. at 194. However, that was
operation of Hi Tech’s facility. Hi Tech
clearly just an attempt to allow for a
does not claim that there is any agency or
remedy if it prevailed on its preemption
employment relationship between it and
claim. It does not alter the fact that the
CPR or that CPR sets or charges a fee to
those who bring C&D debris to Hi Tech’s
transloading facility.19
contractually determine its status as a
railroad carrier for regulatory purposes.
Rather, we cite it merely because it further
19
We do not cite the License reflects the nature of Hi Tech’s activities
Agreement to suggest that a party can and its relationship to CPR.

17
only issue before the district court was waste facilities in a densely
whether New Jersey’s environmental populated state that has
regulations were preempted because Hi suffered the scourge of
Tech’s facility is subject only to regulation unregulated solid waste
by the STB. The district court responded facilities for decades.20
to Hi Tech’s request by concluding in
relevant part:
20
While the federal interest in On June 17, 2003, eleven days after
r e g u l a t in g i n t e rs t a te Hi Tech filed its first complaint in the
railroads is indeed strong, district court, Hi Tech filed a petition with
the federal interest in this the STB. It relied upon substantially the
case is vitiated at least in same preemption arguments we reject here
part by the unprecedented and requested a declaratory order that its
claim of Hi Tech to be facility is therefore not subject to
treated as a “railroad,” when regulation by New Jersey’s SWMA and
it is in fact a solid waste its implementing regulations.
transfer station operating
pursuant to a license from a In a decision of the Director of the
railroad. Office of Proceedings of the STB, dated
August 14, 2003, Hi Tech’s argument was
rejected. Hi Tech Trans, LLC – Petition
App., vol. I, at 10 n.7. The court held that for Declaratory Order, 2003 WL
since New Jersey’s interest in regulating 21952136, STB Finance Docket No.
its solid waste disposal facilities is as real 34192 (Sub. -No. 1). After discussion and
as it is critical, and since Hi Tech’s analysis, the STB concluded:
claimed federal interest in regulating
railroads was virtually non-existent given In sum, Hi Tech’s activities
Hi Tech’s business, Hi Tech’s preemption at its transloading facility at
claim was meritless. The district court CP’s Oak Island Yard and
explained: related activities are not part
of “transportation by rail
[b]alancing [Hi Tech’s] carrier” as defined under 49
rather attenuated federal U.S.C. § 10501(a). Hi Tech
interest against the interests is merely using CP’s
of the State of New Jersey, property to transload cargo.
there is a well-recognized Thus, the Board does not
compelling state interest in have jurisdiction over those
the DEP’s enforcement of activities, and section
its own environmental laws 10501(b) preemption does
especially as to the uniquely not apply to the state and
vexing problem of solid local regulations at issue
18
Id. We agree. In fact, the district court’s on to state in the very same paragraph of
balance of the federal and state interests is its Order: “upon balancing the state and
as compelling as it is poignant. However, federal interests in this case, . . . this Court
that’s the jurisprudential “rub.” For we are will abstain from entertaining [Hi Tech’s]
at a loss to understand why the court went Amended Complaint and will exercise its
discretion not to grant the declaratory
relief sought by Hi Tech.” Id. As noted
here. Therefore, Hi above, Hi Tech only asked the court to
Tech’s petition to d e c l a r e w h e t h e r N e w J e r s e y’ s
institute a declaratory environmental regulations were preempted
order proceeding will by federal law. Although the amended
be denied. complaint also asked for “such other relief
as [the] Court deems just and equitable,” it
2003 WL 21952136 at *5. is clear that the Court concluded as a
For reasons best known to counsel matter of law that injunctive relief was
for Hi Tech, Hi Tech never saw fit to neither just nor equitable because it
inform us of the declaratory proceeding it correctly rejected Hi Tech’s claim of a
instituted before the STB or the Board’s preempting federal interest. Thus, there
decision. The NJDEP referred to it in its was nothing left for the district court to
brief, at 14, but we did not learn about the abstain from.21 The court gave Hi Tech all
Director’s August 14, 2003, decision until it asked for; a declaration of whether
counsel for the NJDEP sent a letter federal law preempted state environmental
pursuant to F.R.A.P. 28(j) on August 27, regulation of the OIRY. “Once a
2003. judgment disposing of all issues on which
the parties sought a declaration is entered
Hi Tech filed an appeal of the by a court,” the matter is at an end.
Director’s decision, but on June 18, 2004, Henglein v. Colt Industries Operating
Hi Tech filed a letter with the STB Corp., 260 F.3d 201, 210 (3d Cir. 2001).
withdrawing that appeal. Counsel for Hi
Tech similarly did not see did not see fit to
21
inform this court of its decision to Indeed, even Judge Smith is forced to
withdraw its appeal, and we also learned examine the strength of the federal interest
of it only in a “28(j)” letter that counsel for here in explaining why abstention was
NJDEP sent on July 19, 2004. We do not proper. In his opinion, Judge Smith,
know why counsel for Hi Tech thought it agrees that the comparative weight of the
appropriate to refrain from informing this federal interest here does not support a
court of matters so germane to this appeal, finding of preemption. Nevertheless, he
but we are certainly troubled by the level concludes that the district court should
of professionalism and apparent lack of have abstained even though, given the
candor it reflects. required preemption analysis, there was
nothing left to abstain from.
19
Therefore, although the district court (1982). 22 And the majority does not
correctly dismissed the amended id e n t i f y a n y “ ‘e x t r a o rd i n a ry
complaint, it did so for the wrong reason. circumstances’” by which “‘deference to
It should not have relied on concepts of the state proceeding will present a
abstention; it didn’t actually abstain. significant and immediate potential for
Rather, it should have dismissed the irreparable harm to the federal interests
amended complaint because there was no asserted.’” Zahl, 282 F.3d at 209
basis for relief given Hi Tech’s (emphasis added) (quoting Schall v. Joyce,
“untenable” and meritless preemption
claim.
22
CONCLUSION First, there was a pending
administrative enforcement proceeding
Accordingly, for the reasons set before the New Jersey Department of
forth above, we will affirm the order of the Environmental Protection, for which New
district court insofar as it rejected Hi Jersey law provides Hi Tech with a right to
Tech’s preemption claim and dismissed Hi a hearing and a right to judicial review.
Tech’s amended complaint. N.J. Stat. Ann. §§ 52:14B-1 to 52:14B-24;
Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.
2002) (holding that similar proceedings
under the New Jersey Administrative
SMITH, Circuit Judge, concurring in the Procedure Act “are clearly judicial in
judgment: nature, and therefore meet the first part of
the [Younger] test”). Second, “there is a
I agree with the majority that the well-recognized compelling state interest
District Court should have dismissed Hi in the [NJDEP’s] enforcement of its own
Tech’s complaint. I disagree, however, environmental laws especially as to the
with the majority’s conclusion that the uniquely vexing problem of solid waste
complaint should have been dismissed on facilities in a densely populated state that
the merits rather than on abstention has suffered the scourge of unregulated
grounds. In my view, the District Court solid waste facilities for decades.” Slip
properly abstained from reaching the Op. at 30 (quoting App. at 10). Third,
merits of this case under Younger v. there was an adequate opportunity to
Harris, 401 U.S. 37 (1971). address Hi Tech’s preemption argument in
The majority recognizes that this the state proceedings. Indeed, preemption
case satisfies the three-part test for appears to have been the only issue raised
abstention under the doctrine of Younger. in the state proceedings. What is more, the
See Middlesex County Ethics Comm. v. New Jersey ALJ ruled in favor of Hi Tech
Garden State Bar Ass’n, 457 U.S. 423, 432 on its preemption argument. NJDEP v. Hi
Tech Trans, LLC, OAL Dkt. No. ESW
05815-03 (N.J. Office of Administrative
Law Aug. 13, 2003).
20
885 F.2d 101, 106 (3d Cir. 1989)); accord Nevertheless, the m ajo rity
Younger, 401 U.S. at 53 (abstention may concludes that the District Court should
not be appropriate under “extraordinary have resolved Hi Tech’s declaratory
circumstances” where “irreparable injury” judgment action on the merits, despite an
would result).23 ongoing state proceeding that was more
than capable of addressing Hi Tech’s

23
In my view, the majority overstates
the significance that the presence of a characterization with which I disagree and
preemption claim should have on a federal which is unnecessary to the majority’s
court’s decision whether to abstain under disposition of this case— and discusses
Younger. The Supreme Court has opinions from this Court that either pre-
addressed this relationship in no uncertain date NOPSI or that involved abstention
terms: under Burford v. Sun Oil Co., 319 U.S.
315 (1943), rather than Younger.
There is no greater federal
interest in enforcing the To be sure, cases involving
sup r e m a c y o f f e deral preemption under the Supremacy Clause
statutes than in enforcing may present a significant and immediate
threat of irreparable harm to federal
the supremacy of explicit interests such that abstention under
constitutional guarantees, Younger is inappropriate. E.g., Olde
and constitutional Discount Corp. v. Tupman, 1 F.3d 202,
challenges to state action, no 212-13 (3d Cir. 1993) (Younger abstention
less than pre-emption-based not appropriate where state proceeding
c h a l l e n g e s , c a l l i n to presented “an immediate potential for
question the legitimacy of irreparable harm” to party’s right to
the State’s interest in its arbitration under Federal Arbitration Act).
proceedings reviewing or We re Hi T ech’s claim “facially
enforcing that action. Yet it conclusive,” for example, the threat of
is clear that the mere irreparable harm might be significant and
assertion of a substantial immediate. NOPSI, 491 U.S. at 366
constitutional challenge to (suggesting that “[i]rreparable injury may
state action will not alone possibly be established . . . by a showing
compel the exercise of that the challenged state statute is
federal jurisdiction. ‘flagrantly and patently violative of
express constitutional prohibitions.’”
New Orleans Pub. Serv., Inc. v. Council of (quoting Younger, 401 U.S. at 53-54)).
the City of New Orleans (“NOPSI”), 491 But that is certainly not the case here, as
U.S. 350, 365 (1989). The majority the majority concludes that Hi Tech’s
characterizes this passage as dicta—a claims are without merit.
21
preemption claim. In my view, it is the challenge d sta te la ws w e re
precisely this sort of “federal interference constitutional. 401 U.S. at 67-68, 73. The
with pending state judicial proceedings” Supreme Court “affirm[ed] the judgment
that Younger abstention is designed to dismissing the complaint, but solely on the
avoid. Slip Op. at 19 (quoting Garden ground that, in the appropriate exercise of
State Bar Ass’n, 457 U.S. at 431). the court’s discretion, relief by way of
declaratory judgment should have been
“The notion of ‘comity’
denied without consideration of the
includes ‘a proper respect
merits.” Id. at 73. Consistent with
for state fu nctions , a
Samuels, the District Court in this case
recognition of the fact that
dismissed Hi Tech’s complaint, declining
the entire country is made
to issue a judgment on the merits of Hi
up of a Union of separate
Tech’s preemption claim despite the
state governments, and a
court’s express doubts regarding the
continuance of the belief
preemption issue. The majority affirms,
that the National
but, contrary to Samuels, affirms on the
Government will fare best if
ground that Hi Tech’s complaint should
t h e S t a t e s a n d t h e ir
have been dismissed on the merits. The
institutions are left free to
m a j o r i t y r e a c h e s th e c o r r e ct
perform their separate
result—affirmance of the District
functions in their separate
Court—but on grounds that, in my
ways.’”
opinion, are contrary to Supreme Court
precedent.
Slip Op. at 19 (quoting Garden State Bar The difficulty in this case is that Hi
Ass’n, 457 U.S. at 431 (quoting Younger, Tech’s preemption claim is translucently
401 U.S. at 44)). thin. Reading the majority’s analysis of
that claim, I have every confidence that
Although Younger involved an
their treatment of the preemption issue is
action to enjoin an ongoing state
correct. My confidence is bolstered by the
proceeding, the companion case of
fact that both the NJDEP and the Superior
Samuels v. Mackell, 401 U.S. 66, 73-74
Court of New Jersey Appellate Division
(1971), concluded that the same comity
came to the same conclusion. New Jersey
and federalism principles preclude federal
v. Hi Tech Trans., LLC, No. A-929-03T3
courts from reaching the merits of a
(N.J. Super. Ct. App. Div. June 11, 2004);
declaratory judgment action. See Garden
New Jersey v. Hi Tech Trans., LLC, No.
State Bar Ass’n, 457 U.S. at 431 n.10. The
SWE PEA030001-U131 (NJDEP Sept. 29,
majority today reaches precisely the
2003). In my view, however, these
opposite conclusion as that which I believe
observations simply reinforce the basic
is required by Samuels. In Samuels, the
premise of Younger: “Minimal respect for
district court dismissed the declaratory
the state processes, of course, precludes
judgment action on the merits, holding that
22
any presumption that the state courts will
not safeguard federal constitutional
rights.” Slip Op. at 19 (quoting Garden
State Bar Ass’n, 457 U.S. at 431).
The dispute in this case is a dispute
between the NJDEP and Hi Tech,
commenced in a state administrative
tribunal with judicial review in the state
courts. These proceedings were ongoing
at the time Hi Tech filed its complaint in
federal court, and there is no question that
these proceedings were and continue to be
capable of resolving the preemption issue
raised by Hi Tech. Due regard for the state
institutions involved in this dispute
required the District Court to decline Hi
Tech’s invitation to consider a declaratory
judgment that w ould obv iate the
substantial time and effort that New Jersey
has expended on these matters. Because
the majority’s reasoning suggests the
opposite, I am constrained to concur only
in the judgment.

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