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Hi Tech Trans LLC v. State of NJ Precedential or Non-Precedential: Precedential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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Recommended Citation "Hi Tech Trans LLC v. State of NJ" (2004). 2004 Decisions. Paper 290. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/290
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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.