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Confederated Salish v. Simonich

argued submitted seattle washington: March 7, 1994.


Appeal from the United States District Court for the District of Montana. D.C. No. CV-92-00054-CCL. Charles C. Lovell, District Judge, Presiding.

Before: Procter Hug, Jr., Cynthia Holcomb Hall and David R. Thompson, Circuit Judges. Opinion by Judge Thompson.

Author: Thompson

THOMPSON, Circuit Judge:

Confederated Salish and Kootenai Tribes of the Flathead Reservation (Tribes) filed a complaint in the United States District Court for the District of Montana challenging Montana's right to regulate the use of water on the Flathead Reservation. Contemporaneous with this filing, the Tribes filed motions requesting the district court to (1) stay the federal proceedings pursuant to Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), and (2) reserve their right to litigate their federal claims in federal court pursuant to England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964), pending resolution of a related state court action filed by the Tribes later that day. The defendants, the Director of Montana's Department of Natural Resources and Conservation (DNRC), and Frank Pope, Kenneth Ciotti, Jorrie Ciotti, Patricia Starner, and John Starner, non-Indian applicants for water use permits, responded by moving the district court to abstain under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and dismiss the federal action.

The district court denied the defendants' motion to abstain and dismiss under Younger. It granted the Tribes' motions to stay the federal proceedings under Pullman and reserve the federal issues under England. The defendants appeal these three interlocutory orders.

We lack jurisdiction to hear the appeal of the order denying the motion to abstain under Younger, and we decline to issue a writ of mandamus. We also lack jurisdiction to hear the appeal of the order granting the Tribes' motion to reserve their federal claims under England. We have jurisdiction, however, to hear the appeal of the order staying federal proceedings under Pullman, and we affirm that order.


The Montana Water Use Act, 1973 Mont. Laws, ch. 452 (codified at Mont. Code Ann. Tit. 85, ch. 2 (1991)), provides that, after July 1, 1973, "a person may not appropriate water . . . except by applying for and receiving a permit from [the Montana DNRC]." Mont. Code Ann. § 85-2-302(1) (1991). Additionally, "an appropriator may not make a change in an appropriation right except as permitted [by the Water Use Act] and with the approval of [the DNRC]." Mont. Code Ann. § 85-2-402(1) (1991). The Water Use Act also establishes an administrative procedure by which the DNRC is to consider such applications. A person adversely affected by the proposed appropriation or change may enter an objection, which then is resolved in an administrative hearing. Mont. Code Ann. § 85-2-309 (1991). Final DNRC orders are subject to review in the state trial court, Mont. Code Ann. §§ 2-4-701 through 711 (1991), and to appeal to the Montana Supreme Court. Mont. R. App. P. 1(b)(1).

In 1984, defendant Pope, a non-Tribal member owning land in fee on the Flathead Indian Reservation, filed an application for a permit to change the point of diversion and place of use of a portion of his water right. In 1986, defendants Kenneth Ciotti, Jorrie Ciotti, Patricia Starner, and John Starner, also non-Tribal members owning land in fee on the Flathead Reservation, filed applications with the DNRC seeking permits for new water rights from sources on the Reservation. Following notice of each of these applications, the Tribes filed objections and requested the applications be denied in their entirety. The Tribes contended the state lacked jurisdiction to administer new water uses on the Flathead Reservation prior to the quantification of federal and Tribal reserved water rights.

This jurisdictional question was bifurcated and certified to the then-director of the DNRC, Karen Barclay Fagg (Fagg), who issued an order April 30, 1990 concluding that Montana has regulatory jurisdiction over water in excess of that needed for federal reserved rights. Given the State's strong interest in comprehensive water regulation, Montana's jurisdiction over surplus water extends to fee land on the Reservation. Tribal or federal water rights, although not yet adjudicated, are adequately protected by the DNRC permit process.

Following remand of the cases, the hearing examiner issued a "Proposal for Decision." Again, the Tribes objected and raised their jurisdictional argument. After a hearing, Fagg issued DNRC's "Final Order on Jurisdiction" on April 14, 1992 affirming the April 30, 1990 order.

The Tribes then filed their complaint in this action. In this complaint they presented only federal claims. They asked the district court to (1) determine that, under federal law, the DNRC lacked jurisdiction to apply Montana law to regulate new or existing uses of water on the Flathead Reservation, and (2) enjoin the DNRC from granting new use or modification permits on Tribal lands. They also moved, under the Pullman abstention doctrine, for an order staying the federal proceeding until the state court proceedings were completed. In addition, they sought, under the England reservation doctrine, an order permitting them to return to federal court to litigate their federal claims after they concluded their litigation in state court.

Immediately after filing their complaint and motions in the United States District Court, the Tribes filed a "Petition for Judicial Review of a Final Agency Order" in the District Court for the First Judicial District of the State of Montana. In this state court action, the Tribes raised only issues of state law challenging the jurisdiction of the DNRC. They also informed the state court of their intention to reserve federal issues for determination by the federal court pursuant to England.

The defendants then moved in federal court to dismiss the federal action on the ground that the district court should abstain under Younger. The district court denied this motion. It concluded that at the time the federal complaint was filed there was "no ongoing action in state court," and therefore abstention under Younger was improper. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982). The district court granted the Tribes' motions to stay the federal proceedings under Pullman, and to reserve the Tribes' federal claims under England . The present DNRC director, Mark Simonich, appeals.

We consider the question of our appellate jurisdiction as it pertains to each of the district court's three interlocutory orders.

A. Order Denying the Defendants' Younger

Abstention Motion

1. 28 U.S.C. § 1291

"The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . ." 28 U.S.C. § 1291 (1991). A district court's decision is appealable under § 1291 only when the decision "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 99 L. Ed. 2d 296, 108 S. Ct. 1133 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945)). When Younger abstention is applicable, the district court "must dismiss the action." Partington v. Gedan, 880 F.2d 116, 120 (9th Cir. 1989) (internal quotation omitted), rev'd and vacated in part on other grounds, 923 F.2d 686 (9th Cir. 1991).

A district court order abstaining under Younger and dismissing the case ends the litigation. It is a final appealable order. Id. In contrast, the district court's order in the present case that it will not abstain under Younger and dismiss the case is not a final decision foreclosing further proceedings. Rather, it "ensures that litigation will continue in the District Court." Gulfstream, 485 U.S. at 275. Simonich argues that although the district court's order is not a final order, it is nevertheless immediately appealable under the collateral-order exception to § 1291 set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949).

In Cohen, the Court recognized a "small class" of decisions appealable under § 1291 although not terminating the underlying action. Id. at 546. Pursuant to Cohen, we have jurisdiction to hear an appeal of a district court's interlocutory order if the order (1) "conclusively determines the disputed question"; (2) "resolves an important issue completely separate from the merits of the action"; and (3) is "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978) (footnote omitted).

In Gulfstream, the Supreme Court applied the first prong of the Cohen test and held a district court's refusal to stay or dismiss federal proceedings, pursuant to the abstention doctrine established in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), is not an immediately appealable order. Gulfstream, 485 U.S. at 278. The Court noted that while an order granting a Colorado River stay "'necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case' . . . an order denying a motion to stay or dismiss an action pursuant to Colorado River. . . leads to a different result." Gulfstream, 485 U.S. at 277-78 (quoting Moses H. Cone Memorial Hosp. v. Mercury Const. Co., 460 U.S. 1, 18, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983)) (emphasis added). When a district court denies a motion to stay or dismiss under Colorado River, it does not "necessarily contemplate" that the decision will close the matter for all time. In denying such a motion, the district court may well have determined only that it should await further developments before concluding that the balance of factors to be considered under Colorado River. . . warrants a ...

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