Natural Resources Defense Council Santa Monica Baykeeper, Inc. Terry Tamminen v. California Department of Transportation, and James W. Van Loben Sels
96 F.3d 420
9th Cir.
1996
Check Treatment

*1 (9th Cir.1995), as amended on denial go down cannot rehearing Courts recognized in en banc our path, for as we

this “Arbitration is cen- Motors decision:

Stead bargaining pro- collective of the

tral feature alongside the labor

cess, designed function equity maintaining and balance

contract 1205. workplace.” 886 F.2d at in the

power above, forth I dis- set

For all reasons

sent. DEFENSE RESOURCES

NATURAL Baykeeper,

COUNCIL; Monica Santa Terry Tamminen, Plaintiffs-Appel

Inc.;

lees, DEPARTMENT

CALIFORNIA TRANSPORTATION,

OF

Defendant, SELS, Loben Van

James W.

Defendant-Appellant. 94-56558.

No. Appeals, Court

United States

Ninth Circuit. May 8,

Argued Submitted 1996. Sept.

Decided

Seis, claiming that Caltrans was not in com- pliance with a permit Clean Water Act required polluted it to control stormwater roadways runoff from yards and maintenance in Southern California.

The defendants submitted a motion to dis- subject miss for lack jurisdiction of matter claiming that ease was barred Eleventh Amendment. The district court dismissed all claims Caltrans be- cause, state, as an of arm the Caltrans is immune from suit under the Eleventh addition, Amendment. In the court dis- plaintiffs’ missed Van Loben penalties Seis for civil declaratory relief, they because too were the Elev- However, enth Amendment. pro- the court plaintiffs’ ceeded to trial on pro- claims for spective injunctive individually. Seis District Court’s Order of (“ER”) (Excerpts of Record 11/02/94 Exhibit 7). trial, After a ten-day the district court Mueller, Glenn B. State of California De- found that Van Loben Seis had violated the partment Transportation, Angeles, Los Clean Water Act. Subsequently, the court California, for defendant-appellant. injunction entered permanent Van Seis, requiring Loben specific number of Feuer, Gail Ruderman Mitchell Ber- S. actions order to with the Clean nard, Marks, Nancy Beckman, David S. Nat- (ER permit Act in the future. Exhib- Council, ural Ange- Resources Defense Los 13). les, California, plamtiffs-appellees. for The sole issue raised appeal is whether that, correctly the district court held as a official, California state Van Loben Seis is subject to federal court for violations of the Clean Water Act. We affirm. HALL, O’SCANNLAIN, Before I KLEINFELD, Judges. Circuit The Eleventh Amendment of the prohibits United States Constitution HALL; Opinion by Judge Concurrence hearing courts brought by private Judge O’SCANNLAIN. governments, citizens without HALL, CYNTHIA HOLCOMB Circuit Louisiana, the state’s consent. Hans v. Judge: 504, 507, U.S. 10 S.Ct. 33 L.Ed. 842 dispute (1890). This is a citizen enforcement action State extends to state brought pursuant to the provi- agencies officers, citizens’ suit and to state who act on Act, sion of the Clean Water 33 U.S.C. behalf of the state and can therefore assert § 1365. Plaintiffs-Appellees1 filed suit sovereign immunity. state’s Puerto Rico against Defendants-Appellants, Aqueduct the Califor- Authority and Sewer v. & Metcalf (“Cal- nia Department Inc., Transportation 139, 142-46, Eddy, 506 U.S. 113 S.Ct. trans”) director, (1993); James Van Loben 121 L.Ed.2d 605 Penn non-profit 1. Plaintiffs in this case are two groups private envi- ronmental and a citizen. Halderman, previ ordering payment tion Hosp. v. retroactive Sch. & State hurst Jordan, 900, 908, benefits); Quern ously owed jurisdic 332, 337, 1139, 1143, federal court general, 59 L.Ed.2d (1979) (“The against a state official found that re not be distinction between tion will party the real in interest. *3 permissible state is of the lief under the doctrine Ex when 101-02, Pennhurst, at at U.S. 104 465 parte Young and that in Edel- S.Ct. found barred Rhodes, 287, 232, 416 U.S. 94 908; v. Scheuer prospective man the difference was between (1974). 1686-87, 1683, 40 90 S.Ct. retrospective and relief on relief on one hand other.”). Therefore, injunction the an recognized an Supreme Court The permitted, state officer is even if the general to this rule exception important outlay might require substantial of funds 123, 441, Young, 209 U.S. 28 S.Ct. parte Ex treasury, provided from state that does the (1908), which the held that L.Ed. 714 52 past not retroactive relief for conduct. award does not bar suit Amendment Edelman, 667, at at 1357- 415 U.S. 94 S.Ct. acting in of official violation against a state (“the type of relief 58 difference between the 159-60, 28 at 453- law. Id. at S.Ct. federal by and the Eleventh Amendment that Pennhurst, 102-03, 104 at 54; 465 U.S. S.Ct. parte Young permitted under Ex will not in parte Young is The of Ex doctrine at 909. many day be instances that between that a not notion state can premised the night”). to violate a state officer the Consti authorize Thus, the United States. and laws of tution out, many Although, appellant points as of officer that a state violates an action applying parte Young the the doc cases Ex considered an action of the law is not federal violations, trine federal address constitutional therefore, and, is not shielded from suit state applies we that the to have held doctrine sovereign immunity. Penn state’s the statutory as well. violations of federal law 102, 909; hurst, at 104 S.Ct. at Ex 465 U.S. Dep’t v. Almond Hill Sch. United States of 159-60, Young, at at 209 U.S. 28 S.Ct. parte (9th 1030, Agriculture, F.2d 768 1034 Cir. (The “stripped is of official officer his 453-54 1985) (“The underlying purpose parte of Ex subjected character representative or Young require application to seems consequences the his person to of in his against state officials for violations of power The State conduct. has no individual statutes.”). The Supreme federal Court has immunity any respon-. impart to him recognized parte Young that the Ex doctrine authority sibility supreme of the Unit necessary permit “to courts federal States.”). Therefore, plaintiff may a ed rights federal hold state offi vindicate court a state bring federal suit authority ‘the responsible supreme cials of violating of federal law. officer accused ” Pennhurst, the United States.’ 465 U.S. at Pennhurst, 102, 104 at at 909. 465 U.S. S.Ct. 105, (quoting parte 104 at 910 Ex S.Ct. 454). Still, 160, upon Young, are some limitations 209 U.S. at 28 S.Ct. at there if Young purpose This would be parte Ex state officers. undermined state plaintiff required consistently particular, brings officials were not to act when statutes, alleging a as against a state official violation of with federal well as federal Hill, law, may court constitution. Almond F.2d at federal the federal award 768 parte exception governs Consequently, Young relief that the Ex prospective conduct, may immunity applies but not award Eleventh Amendment official’s future requires payment statutory rights. of federal retroactive relief that violations See - Florida, treasury. from the state Penn Seminole Tribe Florida v. of funds 14, 1114, hurst, 909; U.S. -, - n. 104 1131 465 at S.Ct. at 116 n. U.S. S.Ct. (1996) Jordan, 667-669, 14, 651, (noting 415 U.S. L.Ed.2d 252 that the Edelman (1974) 1347, 1357-59, opinion to en open 39 L.Ed.2d 662 leaves alternative means S.Ct. laws, sure with such (holding that the Eleventh Amendment does states federal as bring compel compli allowing “an [to] not bar suit to individual officer to ensure that processing ance with standards for a state order federal compliance applications; injunc- conduct is in with rejecting welfare an officer’s but law.”); II Aqueduct, Puerto Rico federal 144, (noting at 113 S.Ct. at 688 U.S. Next, we must address Young doctrine “ensures that state Court’s recent Eleventh Amendment decision - employ the Eleventh Amend officials do Florida, in Seminole Tribe Florida v. avoiding compliance as a means of with ment -, U.S. 116 S.Ct. 134 L.Ed.2d 252 Pennhurst, law”); at primary The effect of Seminole 909; at Coeur d’Alene Tribe prior Tribe was to overturn the Court’s deci Co., Idaho, Pennsylvania sion v. Union Idaho v. F.3d Cir. Gas (1989), 1994) (“Under 105 L.Ed.2d 1 system, our federalist Congress may abrogate which held that considered unable to act a man states are state’s Eleventh Amendment when contrary any action ner to federal law. Thus *4 legislates pursuant it powers to its under the part of state officials that violates on the Thus, Commerce Clause. the Court held in law cannot be attributed Seminole Tribe that the Indian Commerce - state.”), -, granted, 116 cert. Clause, purposes which for these is indistin (1996). Indeed, 1415, 134 541 S.Ct. guishable from the Interstate Commerce against permitted courts have several Clause, Congress does not authorize to abro injunctive pursuant state officials for relief gate immunity a state’s to suit without its E.g., the Clean Water Act. Committee to - Tribe, consent. Seminole U.S. at Bay Mokelumne River v. East Util. Save - --, Nevertheless, 116 S.Ct. at 1131-32. Cir.1993) Dist., 305, 13 F.3d 309-10 aspect apply this of Seminole Tribe does not (holding that the does Eleventh Amendment dispute to the current because the district against not bar suit the members of the already against court dismissed all claims Regional Quality California Water Control California, represented by which State was injunctive prospective for under Board relief agency, Caltrans. - Act), denied, cert. the Clean Water Yet, Supreme Court also held Semi- -, (1994); 115 130 S.Ct. L.Ed.2d 130 petitioner’s claim, nole Tribe that the which Thruway Mancuso v. New York State Au Amendment, was Eleventh (S.D.N.Y.1995) thority, F.Supp. brought parte Young could not be as an Ex (permitting injunctive a citizen’s suit for re against governor suit the state either. The lief violations of the Clean Water Congress pre- Court held that “where has Act); Pennsylvania Envtl. Found. Defense scribed a detailed remedial scheme for the Mazurkiewicz, F.Supp. against statutorily enforcement a state a (M.D.Pa.1989) (same). right, created a court should hesitate before casting permitting aside those limitations and case, In the current the district court upon an action a state officer based scrupulously followed dictates of the Su at -, parte Young." Ex Id. at preme Court’s Amendment cases. Congress may choose to limit the The court dismissed all claims Cal- availability parte Young of an Ex agency trans because it is a California state state for violations officers of federal statuto which law, is entitled from suit. See- ry Congress and Court found that Aqueduct, Rico Puerto 506 U.S. at to do it intended so when enacted the statute 113 S.Ct. at 687-88. It claims at dismissed all issue Seminole Tribe. Id. at - & n. 17, 116 S.Ct. at 1133 & n. 17. penalties Van Loben Seis for civil declaratory pertaining past relief vio The Court considered the remedial scheme Quern, lations of the Clean Water Act. See issue, Gaming of the statute at the Indian 440 U.S. at 99 S.Ct. at 1139. The re (“IGRA”), Regulatory Act that it and noted maining pertained solely prospec provisions expressly contained several direct- Seis, tive Van Loben being ed toward the state whose actions were parte Young which is authorized § challenged. 2710. The re- See U.S.C. Edelman. We find no error in the district medial scheme in the IGRA was intended to rulings points. negotiate good court’s on these ensure that states would Ill to enter mto com- Indian tribes faith with gaming certain activities on allow pacts to reasons, foregoing we find that the For the 2710(d)(8). § If See U.S.C. lands. Indian it court did not err when held that district negotiations with a to enter into fails a state Seis, official, as a California negotiations, requested such has tribe subject court for is in federal viola- provides a scheme for federal the IGRA then Act. The tions of the Clean district supervision of Trib- court enforcement action for court’s refusal dismiss this lack compact negotiation. U.S.C. al-State subject jurisdiction matter therefore 2710(d)(7). § AFFIRMED. dispute, in the current at issue The statute Act, distinguishable from the Clean Water O’SCANNLAIN, Judge, specially Circuit IGRA, Court noted in as concurring; Judge KLEINFELD Circuit - See U.S. at - n. Tribe. Seminole joining: n. The Court stated that at 1133 17. in Judge opinion I concur Hall’s because Congress cannot hold that au “[did] accurately reflects of Ninth the state Circuit jurisdiction under Ex thorize federal compelled case is law. Our decision this a cause of action with limited Young over holdings the two of this court Almond only that Con find remedial scheme. We *5 Dep’t Agricul Hill Sch. v. United States in that result gress did not intend Cir.1985) ture, (holding F.2d The then Id. Court contrasted [IGRA].” not bar Eleventh Amendment does action to those statutes “where lower the IGRA state officials to enforce federal Congress implicitly found courts have that statutory right); d’Alene and Coeur Tribe of Young,” parte suit under Ex such authorized Idaho, (9th Cir.1994) Idaho v. F.3d Water Act. Id. as the Clean (holding Eleventh Amendment does bar a against state claim for offi Congress enacted the Clean When seeking preclude cials violations specified provision, citizen suit Act law). permitted legislating to the extent that it was Congress Amendment.2 in the Eleventh Nevertheless, my I express want con- encourage public and assist the tended persistent about the of the cern erosion Elev- pro enforcing the standards participate judicial by expanding Amendment enth ex- pollution. See mulgated to reduce water view, ceptions my within this circuit. we 1251(e). goal, To § further that Con U.S.C. Hill, wrong took a turn in Almond which provision gress citizen suit so enacted reassuring, d’Alene It Coeur follows. might citizen enforcement action that “a be therefore, Supreme to learn that the Court of govern an or a brought individual States, having granted the United certiorari Cong., agency.” S.Rep. No. 92d ment d’Alene, oral argu- Coeur has scheduled (1972), reprinted 2d Sess. ment for mid-October. Whatever result It would seem U.S.C.C.A.N. rea review, timely of the Court’s then, sonable, Congress implicitly in to the interaction attention delicate between bring tended to authorize citizens to governments the federal and state Young officials with context of the Amendment will be responsibility clean with water most welcome. Therefore, permits. we standards find court did not err when

that the district plaintiffs’

refused to dismiss Seis, director of Caltrans. Constitution) provision part: alleged 2. The citizen states to be in who viola- (A) tion of an effluent standard or may limitation "[A]ny a civil action citizen commence (B) (1) chapter (includ- any person under this or an order issued own his behalf— States, (ii) respect (i) ing any the Administrator or a State with the United other governmental agency instrumentality such a standard or or limitation." permitted 1365(a) added). (emphasis § extent U.S.C. the eleventh amendment to