joins (dissenting).
I agree with almost everything Judge LEWIS says except the result he reaches. And, if I could consider myself estopped by my dereliction in this case, my agreement would be complete. But I do not believe we can rectify our inexcusable neglect by awarding Tri-State injunctive relief when we would not have done so if the case had been timely considered and decided.
Some review of our case and case law will serve to put my position in its proper perspective and delineate our differences. We are met at the threshold with the stern admonition against federal equity interference with the state regulatory processes, especially rate-making cases. The Supreme Court has repeatedly denounced abuse of the federal equity power in cases of this kind. See Public Utility Commission of Ohio v. United Fuel Gas Co., 317 U.S. 456, 468, 63 S.Ct. 369, 87 L.Ed. 396; Petroleum Exploration Company v. Public Service Commissioner of Kentucky, 304 U.S. 209, 58 S.Ct. 834, 82 L.Ed. 1294. The Congress has erected definite barriers to its exercise. See 28 U.S.C. §§ 1341, 1342; and see also 28 U.S.C. § 2283. § 1342 forbids the federal courts to enjoin or suspend any order affecting utility rates made by a state rate-making body:
(1) In a diversity suit based on the repugnance of the order to the Federal Constitution; and,
(2) If it does not interfere with interstate commerce; and
(3) If it is made after reasonable order and hearing; and,
(4) If a plain, speedy and efficient remedy is available in the state courts.
The only justification for federal in-junctive relief in this case is that the action of the Wyoming Commission interferes with interstate commerce. Judge Kerr held that a speedy and efficient remedy was available. No one seems to seriously contend otherwise. He did not think that the action of the State Commission interfered with interstate commerce because Tri-State was not so engaged.
I agree with the majority that TriState’s operations are in commerce— that power purchased by Tri-State in *120Nebraska for transmission and sale, wholesale in Wyoming, was in commerce. Contrary to what the Wyoming Commission and the Trial Court seem to think, I cannot say that the functions are parasitical or without substance. Whether the power lines to be constructed in Nebraska and amortized in part by the proposed charges for power purchased by the Wyoming Cooperatives is “used or useful” to them for rate-making purposes, is not before us, and is undoubtedly within the purview of the State Commission. The Commission has not asserted jurisdiction over Tri-State’s operations. Indeed, it has specifically disclaimed jurisdiction on the perfectly valid ground that it is not a Wyoming public utility. By its directive to the Wyoming Cooperatives it left little doubt, however, of its attitude toward the proposed charges as a part of the rate base of the Wyoming Cooperatives. The directive has apparently precluded the proposed charges with a consequent chilling effect on Tri-State’s interstate operations.
But the fact that the Commission’s directive adversely affects Tri-State’s interstate operations is not a mandate for federal injunctive relief. The federal equity court may, and should, abstain where, as here, a plain, speedy and efficient remedy is available. This is not a case of peremptory federal regulation, as in F.P.C. v. Southern California Edison, 376 U.S. 205, 215, 84 S.Ct. 644, 11 L.Ed.2d 638. The F.P.C. has specifically disclaimed any jurisdiction over REA-financed cooperatives, such as Tri-State. The REA exercises exclusive supervision ever the planning, construction and operation of the cooperatives’ facilities which it finances, even more comprehensively than the regulatory supervision which the F.P.C. exercises over investor-owned utilities. See Salt River Project Agricultural Improvement and Power District v. Federal Power Commission, 391 F.2d 470, 473. It has not expressed any concern over the State action though its interest is undoubtedly directly involved.
This being so, the “bright line” between state and federal jurisdiction drawn in F.P.C. v. Southern California Edison, supra, is not so distinct in our case. Rather, ours is an Attleboro case, pure and simple, and the question becomes whether state regulations or state interference with the interstate operations are precluded by force of the interstate commerce clause without more, so as to require federal equity intervention. I do not think so.
Our case is somewhat like Public Utility v. United Fuel Gas Company, supra, though it differs materially on fact, and in my judgment, leads to a different result. In that case, the Ohio Commission asserted its jurisdiction over an interstate wholesalers of gas, prior to the advent of the Natural Gas Act (15 U.S.C. § 717 et seq.), the counterpart of the Federal Power Act. (16 U.S.C. § 791a et seq.) But, upon the enactment of the Natural Gas Act, the wholesaler became subject to the exclusive jurisdiction of the F.P.C. with respect to rates and charges of its interstate sales. The orders of the Ohio Commission became plainly invalid. “No inquiry beyond the orders themselves and the undisputed facts which underlie them is necessary in order to discover that they are in conflict with the federal Act.” Public Utilities Commission v. United Fuel Gas Co., Id. at p. 469, 63 S.Ct. at 376. The wholesalers ran the risk of incurring heavy fines and penalties, and needless and wasteful litigation if it failed to comply with the state regulatory order. Equitable consideration unquestionably dictated federal injunctive relief. “Interference with interstate commerce” was plain and unequivocal. Enforcement of the Commission’s order would work irreparable injury.
In these circumstances, and in view of the inordinate delay in the three-judge federal court, the Supreme Court could not say that the injunctive relief was an improper exercise of equitable jurisdiction. But conceding, as we do, that our case is an Attleboro case, it is important to note that Attleboro reached *121the Supreme Court through the exhaustion of state remedies, as did State of Missouri ex rel. Barrett v. Kansas Natural Gas, 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027. And it is also important that the trial court has declined equity jurisdiction in deference to an adequate state remedy.
Our case is more like Petroleum Exploration Co. v. Public Service Commission, supra, where, as here, “the federal courts are asked to stop at the threshold, the effort of the Public Service Commission of Kentucky to investigate matters entrusted to its care * * And where the court said that “The extraordinary powers of injunction should be employed to interfere with the action of the state * * * ‘Only a case of manifest oppression will justify a federal court in laying such a check upon administrative officers acting colore officii in a conscientious endeavor to fulfill their duty to the state’ ”.
For these reasons I would affirm the judgment of the trial court.