268 F.3d 695 | 9th Cir. | 2001
Lead Opinion
Opinion by Judge T.G. NELSON; Dissent by Judge HUG
The United States appeals the district court’s decision to abstain from deciding whether the Nevada State Engineer’s denial of the United States’ water permit applications is preempted by federal law. We hold that abstention was improper and remand for adjudication on the merits.
I
FACTS AND DISTRICT COURT PROCEEDINGS
Congress passed the Nuclear Waste Policy Act (“NWPA” or “the Act”)
The Yucca Mountain site characterization activities require water. Realizing that the current water permits expire in April 2002 and that obtaining new permits would take time, the Department of Energy (“DOE”) filed five permit applications with Nevada’s State Engineer in 1997.
Several parties protested the DOE’s permit applications. In November 1999, the State Engineer conducted an administrative hearing to consider these protests. At that hearing, a DOE witness testified that, if Congress ultimately designated Yucca Mountain as a nuclear waste repository, the requested water would be used to construct and operate such a facility in addition to the purposes listed on the applications.
The EPA witness’s testimony featured prominently in the State Engineer’s decision to deny the DOE’s permit applications. Nevada law allows the State Engineer to deny a permit application for only three reasons: (1) there is no unappropriated water at the proposed source; (2) the proposed use conflicts with existing rights; or (3) the proposed use threatens to prove detrimental to the public interest.
This determination greatly simplified the State Engineer’s task. The purposes the State Engineer ascribed to the DOE’s permit applications directly conflicted with Nevada law. The State Engineer noted that, by enacting Nevada Revised Statute 459.910, which makes it “unlawful for any person or governmental entity to store high-level radioactive waste in Nevada,”
In September 2000, the federal district court dismissed the United States’ complaint.
II
FEDERAL QUESTION JURISDICTION
In its complaint, the United States sought both declaratory and injunctive relief, including: (1) a declaration that, under the Supremacy Clause, the NWPA preempts Nevada Revised Statute 459.910 and the State Engineer’s ruling that relied upon it; (2) an order enjoining the State Engineer to evaluate the United States’ permit applications without relying on Section 459.910 and enjoining all defendants from “unlawfully interfering with DOE’s performance of its obligations under NWPA;” and (3) a declaration that the State Engineer’s ruling was arbitrary and capricious. These pleadings suffice to confer federal question jurisdiction.
As the Supreme Court explained in Bell v. Hood,
More recently, the Supreme Court explained that
the district court has jurisdiction if the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another, unless the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.24
The United States plainly sought “recovery directly under the Constitution or the laws of the United States.”
If the NWPA is interpreted to contemplate, either explicitly or implicitly, that only the Federal Government shall be entitled to determine whether siting a nuclear waste repository at Yucca Mountain is in the public interest, then the United States will prevail. If NWPA is not so interpreted, or if it is interpreted to allow state participation over and above the “notice of disapproval process” explicitly provided for in 42 U.S.C. § 10136,
Despite the fact that interpretation of the NWPA will control the outcome of this suit, the district court was not convinced that the United States’ action arose under federal law. At defendants’ urging, the court held that the Supremacy Clause was not an essential element of the relief the United States seeks. The court arrived at this conclusion by delving into the merits of the action, and, in particular, into the substance of the State Engineer’s decision. It held that the United States’ constitutional claim that the NWPA preempts Nevada Revised Statute 459.910 was improvidently asserted because the State Engineer’s denial of the Government’s permit applications was not predicated on a straightforward application of Nevada’s state law. According to the court, the State Engineer “did not find that NRS
In Ultramar America Ltd. v. Dwelle,
The United States’ decision to challenge Nevada Revised Statute 459.910 as preempted leaves the court with only two options: (1) exercise jurisdiction; or (2) dismiss the suit because the federal claim is insubstantial.
The State Engineer candidly admitted that he was “not required by statute to conduct the political and economic deci-sionmaking as to whether a repository should be located in Nevada”
The ' United States’ claim that the NWPA preempts Nevada Revised Statute
Our decision in State of Nevada v. Watkins
Although the President and Congress have not designated Yucca Mountain as a nuclear waste repository, Nevada’s invocation of Nevada Revised Statute 459.910 to deny the United States’ permit applications may still “stand as an obstacle” to the Act’s accomplishment for two reasons. First, Congress may have preempted the field of nuclear waste disposal. The Supreme Court has not yet decided this issue,
In addition to jurisdiction pursuant to 28 U.S.C. § 1331, the federal court has jurisdiction to hear this case under 28 U.S.C. § 1345. That statute provides the district courts with original jurisdiction of all civil actions commenced by the United States. The Nevada district court recognized that the statute granted it jurisdiction by virtue of the fact that the United States was the plaintiff in the case. Therefore, regardless of the outcome of federal question jurisdiction, the district court has independent
Ill
ABSTENTION
After concluding that 28 U.S.C. § 1345, but not 28 U.S.C. § 1331, conferred subject matter jurisdiction, the district court abstained from ruling on the merits based on Pullman, Burford, and Colorado River.
Because the federal courts’ obligation to adjudicate claims within their jurisdiction is “virtually unflagging,”
A. Pullman Abstention
Pullman abstention is the oldest of the abstention doctrines and perhaps the easiest to understand. In Pullman, railroads and their porters brought an equal protection challenge to a Texas Railroad Commission regulation. The regulation required that all sleeper cars on Texas trains had to be attended by Pullman conductors rather than porters during an era when Pullman conductors were white and porters were black.
In Pullman, an alternative to federal adjudication was open: under state law, the Railroad Commission’s statutory authority for issuing the controversial regulation was doubtful. In light of this state law vulnerability, the Supreme Court instructed the district court to “restrain [its] authority.”
Our test to determine whether Pullman abstention is warranted in this case closely follows the Supreme Court case. Pullman abstention is appropriate only when three concurrent criteria are satisfied: (1) the federal plaintiffs complaint must require resolution of a sensitive question of federal constitutional law; (2) that question must be susceptible to being mooted or narrowed by a definitive ruling on state law issues; and (3) the
None of these criteria is satisfied here. Although the location of a nuclear waste repository is plainly a sensitive social issue, it is not the issue in this case. The issue in this ease is whether the NWPA preempts Nevada Revised Statute 459.910. This preemption question is not a sensitive constitutional question like the one at issue in Pullman. As we explained in Knudsen Corp. v. Nevada State Dairy Comm’n,
Even if preemption were deemed to be a sensitive constitutional question, Pullman abstention would still be inappropriate because there is no unclear state law issue that would moot the preemption question if resolved by a state court.
B. Burford Abstention
Burford abstention also arose from a case involving the Texas Railroad Commission. In Burford, an oil company filed suit in federal court to attack the validity of a permit that the Commission had granted to Burford. The permit allowed Burford to drill four wells in an East Texas oilfield.
first, that the state has chosen to concentrate suits challenging the actions of the agency involved in a particular court; second, that federal issues could not be separated easily from complex state law issues with respect to which state courts might have special competence; and third, that federal review might disrupt state efforts to establish a coherent policy.68
None of these criteria is met in this case. There is no evidence, as there was in Burford with respect to the Texas courts, that “[Nevada] courts are working partners with [the State Engineer] in the business of creating a regulatory system for [the issuance of water permits].”
C. Colorado River Abstention
Although the district court invoked Pullman and Burford abstention as alternate grounds, it based its decision to abstain primarily on Colorado River Water Conservation District v. United States.
In Colorado River, the Government filed suit in federal district court against more than a thousand water users to establish its own water rights and those of its trustee tribes in one of Colorado’s seven Water Divisions, Division 7.
On review, the Supreme Court’s first order of business was to destroy the notion that, by consenting to state adjudication of the United States’ water rights, the McCarran Amendment divested district courts of their jurisdiction over this type of claim.
Although this case falls within none of the abstention categories, there are principles unrelated to'considerations of proper constitutional adjudication and regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions.... These principles rest on considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of the litigation.81
In Colorado River, the Court’s chief concern was with avoiding piecemeal litigation:
Turning to the present case, a number of factors clearly counsel against concurrent federal proceedings. The most important of these is the McCarran Amendment itself. The clear federal policy evinced by that legislation is the avoidance of piecemeal adjudication of water rights in a river system. This policy is akin to that underlying the rule requiring that jurisdiction be yielded to the court first acquiring control of property, for the concern in such instances is with avoiding the generation of additional litigation through permitting inconsistent dispositions of property.... The consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.82
The district court concluded that the same concern for avoidance of piecemeal litigation counsels abstaining here. We disagree. Colorado River does not say that every time it is possible for a state court to obviate the need for federal review by deciding factual issues in a particular way, the federal court should abstain. As the Supreme Court has observed, such a holding would “make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.”
There is no such expressed preference here. This is not a comprehensive stream adjudication case to which the McCarran Amendment applies. The preemption issue that the United States seeks to have federally adjudicated bears scant resemblance to the complex water ownership issues involved in Colorado River. In this case, allocation of limited water rights is not an issue because there is an adequate water supply to fulfill the government’s request. Moreover, Colorado River was a state law case that the Government sought to have federally adjudicated. This case is the converse: a federal law case that the state seeks to have adjudicated in state court. It would be surprising indeed if Congress had passed a law expressing a preference for state adjudication of federal preemption issues. Because Congress has not done so, we hold that Colorado River abstention has no applicability here.
D. Younger Abstention
Younger abstention is the one abstention doctrine the district court did not invoke to justify its decision to abstain in this case. The court reasoned that Younger dealt with attempts to restrain state criminal prosecutions and that “[tjhough there have been attempts to expand the effect of that decision, there is no need to , attempt to do so here.”
We hold that Younger is inapplicable here for an even more basic reason.
[I]n a case in which the United States seeks relief against a state or its agency, the state and federal governments are in*708 direct conflict before they arrive at the federal courthouse. By the time the United States brings suit in federal court against a state, any attempt to avoid a federal-state conflict would be futile.89
Since it is impossible to avoid federal-state conflict when the United States is a party, the determination of forum depends upon choosing the proper forum for resolution of the conflict.
Conflict inheres in situations like that at issue here. Not only is the United States acting as the plaintiff in the case, asserting its rights against those of the state, but the United States and Nevada have been at loggerheads over the potential siting of a nuclear waste repository in that state since at least 1989. In that year, Nevada brought suit against the United States alleging that the 1987 NWPA amendments designating Yucca Mountain as the sole site to be characterized “arose out of a political conspiracy between the Bureau of Land Management, the DOE and Congress designed to isolate Nevada and render it the unwilling host of the [nuclear waste] repository.”
Because conflict is inevitable in this case, the choice of forum must be influ
IV
CONCLUSION
As plaintiff, the United States controls its complaint. It alleged that the NWPA preempts Nevada Revised Statute 459.910. Because this federal preemption claim is not insubstantial, it confers federal question jurisdiction. In addition, the substan-tiality of the United States’ claim, coupled with the absence of the requirements for the various forms of abstention, makes abstaining improper. Accordingly, we VACATE the district court’s dismissal of this action and REMAND the case for adjudication on the merits.
VACATED AND REMANDED.
. 42 U.S.C. §§ 10101-10270 (1997).
. Id. at § 10131(b)(1).
. Id. at § 10132(b)(1)(A). The NWPA defines "site characterization" to include:
activities, whether in the laboratory or in the field, undertaken to establish the geologic condition and the ranges of the parameters of a candidate site relevant to the location of a repository, including borings, surface excavations, excavations of exploratory shafts, limited subsurface lateral excavations and borings, and in situ testing needed to evaluate the suitability of a candidate site for the location of a repository, but not including preliminary borings and geophysical testing to assess whether site characterization should be undertaken.
42 U.S.C. § 10101 (2l)(b); 10 C.F.R. § 60.2.
.Nuclear Waste Policy Act Amendments of 1987, Pub.L. No. 100-203, Title V, § 5011(g)(3) (1987) (codified at 42 U.S.C. § 10133(c)(3)(A)-(F)).
. Nev.Rev.Stat. 533.370(3) (1999). In 2001, the Nevada legislature amended the statute, amplifying the second reason in a way that does not affect our analysis here. See Nev. Rev.Stat. 533.370(3) (2001).
. See In re Applications 63263, 63264, 63265, 63266, and 63267 Filed to Appropriate Public Waters (Ruling 4848) (Nev. State Engineer, Feb. 2, 2000) (final ruling) (hereinafter “Ruling 4848").
. The State Engineer recognized that, if the permits sought water for site characterization only, a denial based on the public interest would be squarely preempted by our decision in State of Nevada v. Watkins, 914 F.2d 1545 (9th Cir.1990). Ruling 4848 at 23.
. Ruling 4848 at 18.
. Nev.Rev.Stat. 459.910(1).
. Ruling 4848 at 22.
. Id. "The State Engineer ... does not have the duty or authority to independently review the decision of the Nevada legislature that high-level waste is not to be stored in Nevada.” Id.
. Id.
. United States v. Nevada, 123 F.Supp.2d 1209 (D.Nev.2000).
. Id. at 1213. Section 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
. Nevada, 123 F.Supp.2d at 1213. Section 1345 provides that "[e]xcept as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress." 28 U.S.C. § 1345.
. Railroad Comm’n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).
. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
. Nevada, 123 F.Supp.2d at 1218-19.
. 28 U.S.C. § 1331.
. 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
. Id. at 680, 66 S.Ct. 773 (internal quotation marks, alteration indications, and citation omitted).
. Id. at 681-82, 66 S.Ct. 773.
. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotation marks and citations omitted).
. Bell, 327 U.S. at 681-82, 66 S.Ct. 773.
. 42 U.S.C. § 10136(b) provides as follows:
(b) State participation in repository siting decisions
(1) Unless otherwise provided by State law, the Governor or legislature of each State shall have authority to submit a notice of disapproval to the Congress under paragraph (2). In any case in which State law provides for submission of any such notice of disapproval by any other person or entity, any reference in this part to the Governor or legislature of such State shall be considered to refer instead to such other person or entity.
(2) Upon the submission by the President to the Congress of a recommendation of a site for a repository, the Governor or legislature of the State in which such site is located may disapprove the site designation and submit to the Congress a notice of disapproval. Such Governor or legislature may submit such a notice of disapproval to the Congress not later than the 60 days after the date that the President recommends such site to the Congress under section 10134 of this title. A notice of disapproval shall be considered to be submitted to the Congress on the date of the transmittal of such notice of disapproval to the Speaker of the House and the President pro tempore of the Senate. Such notice of disapproval shall be accompanied by a statement of reasons explaining why such Governor or legislature disapproved the recommended repository site involved.
. Id.
. Id.
. 900 F.2d 1412 (9th Cir.1990).
. Id. at 1414 (quoting Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 460, 14 S.Ct. 654, 38 L.Ed. 511 (1894)).
. Bell, 327 U.S. at 681, 66 S.Ct. 773.
. See id. at 682-83, 66 S.Ct 773.
. Steel Co., 523 U.S. at 89, 118 S.Ct. 1003 (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974)).
. Ruling 4848 at 22.
. Id.
. 42 U.S.C. § 10131(b)(2) and (3).
. 914 F.2d 1545 (9th Cir.1990).
. Id. at 1561.
. Id.
. Id. (internal quotation marks and citation omitted).
. Id.
. Id. (citing 42 U.S.C. §§ 10134, 10136(b)(2)).
. Id. at 1560 (internal quotation marks and citation omitted).
. See 42 U.S.C. § 10136.
. Nevada, 123 F.Supp.2d at 1219.
. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
. Nevada, 123 F.Supp.2d at 1218-19.
. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans ("NOPSI"), 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (quoting Deakins v. Monaghan, 484 U.S. 193, 203, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988)).
. Id.
. Fireman's Fund Ins. Co. v. Quackenbush, 87 F.3d 290, 294 (9th Cir.1996).
. Id.
. Pullman, 312 U.S. at 497-98, 61 S.Ct. 643.
. Id.
. Id. at 498, 61 S.Ct. 643.
. Id. at 501, 61 S.Ct. 643.
. Id.
. San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1104 (9th Cir.1998); Pearl Inv. Co. v. City and County of San Francisco, 774 F.2d 1460, 1463 (9th Cir.1985).
. 676 F.2d 374 (9th Cir.1982).
. Knudsen, 676 F.2d at 377.
. See Hotel Employees and Restaurant Employees Int’l Union v. Nevada Gaming Comm’n, 984 F.2d 1507, 1512 (1993).
. See Knudsen, 676 F.2d at 377 ("A federal court may postpone the exercise of its jurisdiction in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.”) (internal quotation marks and citation omitted).
. Nevada law clearly states that the State Engineer must deny a water permit if the proposed use is against the public interest. Nev.Rev.Stat. § 533.370.
. Burford, 319 U.S. at 316-17, 63 S.Ct. 1098.
. Id. at 318, 63 S.Ct. 1098.
. Id. at 327, 63 S.Ct. 1098.
. Knudsen, 676 F.2d at 376.
. Id. at 377.
. Burford, 319 U.S. at 326, 63 S.Ct. 1098.
. Knudsen, 676 F.2d at 377.
. Id.
. 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
. Id. at 804-05, 96 S.Ct. 1236. As the Supreme Court explained, Colorado had established "elaborate procedures” for continuously adjudicating water rights claims. Part of its system was to divide the state into seven water districts. Id. at 804, 96 S.Ct. 1236.
. Id. at 806, 96 S.Ct. 1236.
. 43 U.S.C. § 666. The McCarran Amendment provides, in relevant part:
Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and*706 the United States is a necessary party to such suit.
l±
. Colorado River, 424 U.S. at 806, 96 S.Ct. 1236.
. Id.
. Id. at 806-09, 96 S.Ct. 1236.
. Id. at 809, 96 S.Ct. 1236.
. Id. at 813, 96 S.Ct. 1236.
. Id. at 817, 96 S.Ct. 1236 (internal quotation marks and alteration omitted).
. Id. at 819, 96 S.Ct. 1236.
. NOPSI, 491 U.S. at 368, 109 S.Ct. 2506.
. Ryan v. Johnson, 115 F.3d 193, 197-98 (3d Cir.1997) (internal quotation marks omitted).
. Nevada, 123 F.Supp.2d at 1218-19.
. Because of its criminal context, Younger made no mention of possible civil applications. In several subsequent cases, however, the Supreme Court has made it clear that the principles of “Our Federalism” extend to the civil context as well. See, e.g., Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (noting that "we have extended Younger abstention to the civil context”); NOPSI, 491 U.S. at 367-68, 109 S.Ct. 2506 ("[OJur concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings, and even to civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions .... ”); see also Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). In light of these cases, suggestions that Younger is inapplicable because of its original criminal context are no longer valid.
. United States v. Composite State Bd. of Med. Examiners, 656 F.2d 131, 136 (5th Cir. Unit B Sept. 1981); see generally James C. Rehnquist, “Taking Comity Seriously: How to Neutralize the Abstention Doctrine,” 46 Stan. L.Rev. 1049 (1994).
. United States v. Dicter, 198 F.3d 1284, 1291 (11th Cir.1999); United States v. Commonwealth of Pa., 923 F.2d 1071, 1078-79 (3d Cir.1991); Composite State Bd., 656 F.2d at 136.
. Composite State Bd.., 656 F.2d at 136.
. Id.
. Id.; Commonwealth of Pa., 923 F.2d at 1078-79.
. State of Nevada v. Burford, 708 F.Supp. 289, 300 (D.Nev.1989). See generally Mark E. Rosen, "Nevada v. Watkins: Who Gets the Shaft?,” 10 Va. Envtl. LJ. 239, 257-64 (Spring 1991) (chronicling the many fronts upon which Nevada has been fighting the prospective siting of a national nuclear waste repository at Yucca.Mountain).
. State of Nevada v. Herrington, 111 F.2d 529, 536 (9th Cir.1985). In a more recent related controversy, we held that the DOE’s denial of Nevada's request for funds for reviewing, monitoring, and evaluating the DOE’s site characterization activities for Yucca Mountain nuclear waste repository did not violate the NWPA. See State of Nevada v. United States Dep’t of Energy, 133 F.3d 1201 (9th Cir.1998).
. Watkins, 914 F.2d at 1561.
.Even if we were inclined to hold that Younger abstention is appropriate in a case in which the federal government sues a state, it is not clear Younger abstention would apply. The Nevada State Engineer's decision is a final agency decision that may be appealed in state court. In NOPSI, the Supreme Court noted that in the only two cases in which it has held that Younger principles preclude a federal court from enjoining state agency action, that action was not final, but rather was in midstream. See 491 U.S. at 370 n. 4, 109 S.Ct. 2506 (citing Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), and Middlesex County Ethics Comm. v. Garden State Bar Ass'n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). The Supreme Court declined to decide whether, when the agency action is complete but may be appealed, Younger prevents federal intervention on the theory that the agency adjudication and its subsequent appeal constitute an "uninterrup-tible whole.” NOPSI, 491 U.S. at 368-69, 109 S.Ct. 2506.
. United States v. Ohio, 614 F.2d 101, 104 (6th Cir.1979).
Dissenting Opinion
Dissenting:
I respectfully dissent. The majority opinion concludes that Younger abstention is inappropriate here because that doctrine aims to avoid federal-state conflict and such conflict has been “raging for over ten years” in this case. This broad characterization of Younger overlooks the heart of the doctrine and that the circumstances here fall squarely under the concerns warranting such abstention.
While the majority correctly recognizes that the United States and the state of Nevada have litigated issues involving the Yucca Mountain site for years, this does not render abstention under Younger disingenuous. Younger stresses respect for comity and federalism, not just generally, but specifically in the form of “proper deference to a state’s interest in ongoing proceedings in its own forums, and deference to a state judiciary’s power to consider constitutional claims.” United States v. Ohio, 614 F.2d 101, 104 (6th Cir.1979) (citing Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977)). Accordingly, an ongoing controversy here between the federal and state governments does not render Younger inapplicable where a federal court would disrupt the integrity of the state’s judicial system by intervening in mid-process. See Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Younger “and its progeny espouse a strong federal policy against federal court interference with pending state judicial proceedings absent extraordinary circumstances.” Id. Such an intrusion involves more than just a conflict between a state and the federal government as federal intervention in such proceedings “would demonstrate a lack of respect for the State as sovereign.” New Orleans Public Service Inc. v. Council of the City of New Orleans, 491 U.S. 350, 369, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). See also Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (describing the basic concern addressed under Younger as the threat to our federal sys
Having concluded that Younger’s policy concerns are implicated, the next question to address is whether Younger applies here. Younger principles apply to pending state administrative proceedings that are judicial in nature and involve important state interests. See Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1356 (9th Cir.1986); Middlesex, 457 U.S. at 433-434, 102 S.Ct. 2515 (concluding that being “judicial in nature” a state bar’s disciplinary proceedings are “of a character to warrant federal-court deference”). The proceeding before the State Engineer was undoubtably judicial in nature, complete with hearings, testimony, motions and a decision written like that of a judicial opinion. The agency proceeding “investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” NOPSI, 491 U.S. at 370, 109 S.Ct. 2506 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)) (internal quotations and citations omitted).
Under the three-pronged test established by the Supreme Court, Younger “abstention is appropriate in favor of a state court proceeding if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions.” Fresh International Corp., 805 F.2d at 1357-58 (citing Middlesex, 457 U.S. at 432, 102 S.Ct. 2515). Accordingly, we should first determine whether the state proceedings had been initiated before any proceedings of substance on the merits have taken place in federal court. Id. at 1358.
The administrative hearing here was initiated, a decision rendered by the agency and an appeal to a state court filed prior to the initiation of the federal action. For Younger purposes, the State’s trial-and-appeals process is treated as a unitary system and, as noted above, for a federal court to intervene in mid-process “would demonstrate a lack of respect for the State as a sovereign.” NOPSI, 491 U.S. at 369, 109 S.Ct. 2506. For the same reason, a party may not seek federal review by terminating the state judicial process prematurely — forgoing the state appeal to attack a trial court’s judgment in federal court. Id. A necessary concomitant of Younger is that a party must exhaust his state appellate remedies before seeking relief in federal court from the judgment of a state judicial tribunal. Id.
Our Court has applied the same principle to processes started in an administrative agency viewing the litigation from agency through courts as a unitary process that should not be disrupted by premature federal intervention. See Fresh International Corp., 805 F.2d 1353 (concluding that state proceedings were ongoing for Younger purposes where agency decision was issued and appeal was taken to the state appellate court as provided by state law).
Next, we must consider whether there is a sufficiently important state interest that would be affected by the federal action so as to warrant Younger abstention. Id. at 1358. The Supreme Court has cited with approval other courts’ decisions that have
While a claim that a state law is preempted by a federal law certainly factors into our consideration of whether a state’s interest is substantial to invoke Younger, merely raising preemption does not automatically render Younger abstention inappropriate unless preemption is readily apparent. Id. at 1361. Preemption is not readily apparent in this case because the DOE seeks permits for activities not yet authorized by Congress under the Nuclear Waste Policy Act (“NWPA”).
We have previously held that Congress preempted N.R.S. § 459.910 with regard to the characterization study and evaluation of the Yucca Mountain site. State of Nevada v. Watkins, 914 F.2d 1545 (9th Cir.1990). Thus, the State Engineer is clearly prohibited from denying water permits based on N.R.S. § 459.910 for this evaluation and study period. However, Congress has not yet acted to authorize the construction and operation of a permanent facility at Yucca Mountain. That will take an additional congressional act after the State of Nevada has had an opportunity to protest as provided under the NWPA. We have no way of knowing when or if that congressional act will occur or what it would provide.
The application made by the DOE is a combined application which seeks to obtain water not only for the continuation of the evaluation period, but also for the operation and construction of the facility. The State Engineer denied this combined application, in part because it requested permits for such acts which are not yet authorized under the NWPA. Were the DOE simply to seek an extension of the water permits for the continued evaluation of the site, then the State Engineer could not refuse to extend the permits on the grounds that N.R.S. 459.910 prohibits them. See id. (holding that for that aspect, N.R.S. 459.910 is preempted). Accordingly, preemption is not readily apparent in this case as the DOE’s combined applications seek permits for conduct not yet authorized by Congress. I reach what I find a logical and compelling conclusion: an Act which Congress has not yet passed cannot preempt state law or state agency decisions. The DOE could clearly present a revised application limiting its request to activities authorized under the NWPA.
Finally, we must consider whether the United States will have an adequate opportunity to raise its preemption claim in the state proceedings. Fresh International Corp., 805 F.2d at 1362. Nevada law provides that any aggrieved party seek review of the State Engineer’s decision by appeal which “shall be initiated” in the court of the county in which the matters affected are situated. Nev.Rev.Stat. 533.450(1). Similar to the statute providing for state court appeal from the administrative decision in Fresh International Corp., the Nevada statute contains no restrictions on the court’s power to hear questions of constitutionality or preemption. See id. While the proceedings are “informal and summary,” appeals from the district court may be taken to the supreme court in the same manner as other civil cases. Nev.Rev.Stat. 533.450(2) & (8). So long as the United States may raise its federal claims in state court review of the administrative proceeding, this prong is satisfied. Id. (citing Dayton, 106 S.Ct. at 2724).
. NOPSI did not disturb this precedent as there the Supreme Court assumed without deciding that such application was correct. 491 U.S. at 368, 109 S.Ct. 2506.
. While the district court relied on other abstention doctrines and not Younger, we 'may affirm on any ground that has support in the record. Keyser v. Sacramento City Unified School District, 238 F.3d 1132, 1139 (9th Cir.2001).