Hi Tech Trans LLC v. State of NJ

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Precedential or Non-Precedential: Precedential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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PRECEDENTIAL SCHILLER, District Judge*

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.

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