concurring in part and concurring in the judgment:
I join the court’s opinion with the exception of Part III. I would hold, as did the *941district court, that this action is in essence a suit for damages against the State of Hawai‘i and, therefore, is barred by the Eleventh Amendment. Nonetheless, I agree that, as Part IV of the court’s opinion concludes, the 1999 amendments to the Medicaid statute extinguish any possible claim by the plaintiffs to a portion of future tobacco settlement payments, and I concur in the judgment to that extent.
The court holds that plaintiffs’ claims are within the Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908) exception because they seek remedy for a present and ongoing violation of federal law. In its analysis, the majority declines to follow the Sixth Circuit’s holding in Barton, 293 F.3d 944 (6th Cir.2002) that plaintiffs’ claims are an attempt to recover retrospective relief in the form of money damages, and therefore barred. I am persuaded that Barton should apply here and therefore believe that the State of Hawaii has a present vested right in the settlement funds.
In distinguishing between permissible prospective, and impermissible retrospective, relief, “attempts to seize upon a state’s ‘continuing income’ by means of a prospective injunction have been held by the Supreme Court to be attempts to obtain compensation for an ‘accrued monetary liability.’ ” Barton, 293 F.3d at 949 (citing Papasan, 478 U.S. at 281, 106 S.Ct. 2932). Simply because it receives settlement funds in installments, the state’s present entitlement to these future payments is neither negated nor diminished.
Nevertheless, the majority concludes that because payments from the settlement funds, as well as state allocation of these payments, are to be made in the future, plaintiffs’ claims for portions of these future payments fall within the Ex Parte Young exception. I respectfully disagree. For the purposes of the Eleventh Amendment, we must decide whether the relief being sought is prospective or retrospective, and the mere fact that payments occur in fixed future installments rather than a lump sum is not dispositive of the issue. The state obtained a vested interest in the payment of the settlement when it entered into the Master Settlement Agreement (“MSA”), regardless of whether it took payment in a lump sum or in installments. As a result, plaintiffs imper-missibly seek to recover money damages from the State of Hawai'i: “there is no other purpose underlying the requested ‘injunctive’ relief other than the recovery of cash that is the property of the state. It is therefore barred by the Eleventh Amendment.” Barton, 293 F.3d at 950.
Alternatively, I would hold plaintiffs’ claims to be barred under the Coeur d’Al-ene exception to Ex Parte Young. The Supreme Court in Idaho v. Coeur d’Alene held that even claims for prospective relief would be barred if “special sovereignty interests” were implicated. 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). Allocation of state funds is generally an important state interest. Where, as here, Congress has enacted a statutory provision that specifically allows states to allocate M.S.A. proceeds as they deem appropriate, 42 U.S.C. 1396b(d)(3)(B)(ii), I agree with the court in Barton that plaintiffs’ attempt to force the allocation of state funds “is an interference with a ‘special sovereign interest’ under Coeur d’Alene.” 293 F.3d at 951.
Accordingly, I would decline to reach the merits of plaintiffs’ claims under 42 U.S.C. § 1396k(b). I would affirm on the basis that plaintiffs’ claims are barred by the Eleventh Amendment, because they impermissibly seek retrospective relief, or in the alternative, implicate core state sovereign interests.