WOODFEATHERS, INC.,
Plaintiff-Appellee-Cross-Appellant, v. WASHINGTON
COUNTY, OREGON,
Defendant-Appellant-Cross-Appellee.
Nos. 97-35557, 97-35598
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
180 F.3d 1017; 1999 U.S.
App. LEXIS 9682; 99 Cal.
Daily Op. Service 3737; 99 Daily Journal DAR 4787; 29 ELR 21233
March 3, 1999, Argued and Submitted, Portland,
Oregon
May 20, 1999, Filed
PRIOR HISTORY: Appeals from the United States District Court
District of Oregon. D.C. No. CV-96-00257-ACL. Ancer L.
Haggerty, District Judge, Presiding.
DISPOSITION: Judgment REVERSED and the matter REMANDED with directions
to DISMISS without prejudice.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant county
sought review of decision from the United States District Court for the
District of Oregon determining that appellant county's ordinance was invalid in
part and enjoining its enforcement in certain respects.
OVERVIEW: Appellant county cited appellee for violating its solid waste
ordinance. While state court proceedings were pending, appellee filed an action
in federal district court, challenging the ordinance's constitutionality and
seeking relief against its enforcement. The district court refused to abstain
and enjoined enforcement of the ordinance, holding it preempted by federal law.
The district court refused to abstain under the Younger doctrine, holding that
the state proceedings did not provide an adequate opportunity to raise the
federal question, and that they did not implicate important state interests because
federal preemption rendered the ordinance ineffectual. On appeal, the court
held that state courts were presumed adequate to raise federal questions in the
absence of unambiguous authority to the contrary. The court noted that the
district court held that the solid waste ordinance was preempted by Federal
Aviation Administration Authorization Act of 1994. On appeal, the court
concluded that federal preemption of the county's ordinance was not readily
apparent. Accordingly, the district court erred in not abstaining.
OUTCOME: Judgment was reversed because the district court erred in not
abstaining under Younger doctrine because the state court was not barred from
hearing the federal question and federal preemption was not readily apparent.
The matter was remanded to the district court with directions to dismiss
without prejudice.
CORE TERMS: ordinance, solid waste, abstention, state
interests, federal questions, abstain, state proceedings, federal preemption,
recyclable, debris, interstate commerce, readily apparent, certificate,
preempted, transport, implicate, nuisance, adequate opportunity, judicial
proceedings, transportation, disposal, posture, preempt, box, state law,
federal law, preemption, roofing, dispose, case law
COUNSEL: R. Daniel Lindahl, Bullivant, Houser, Bailey,
Pendergrass & Hoffman, and Dan R. Olsen, Washington County Counsel, Portland, Oregon,
for the defendant-appellant-cross-appellee.
Russell M. Allen and William G. Sheridan, Jr., Allen, Fellows, Livingston, Sheridan, Ryan, Odman & Ford, Portland, Oregon,
for the plaintiff-appellee-cross-appellant.
Stephen A. Redshaw, Stoel Rives, Portland, Oregon; Robert M. Atkinson,
Assistant Attorney General and Jane Ellen Stonecipher, Marion County Assistant
Legal Counsel, Salem, Oregon; Ann van Bever, Preston Gates & Ellis,
Portland, Oregon; John Douglas Moore, Stone & Moore, San Francisco, California;
Lawrence R. Davidson, Portland, Oregon; Jay W. Beattie, Lindsay, Hart, Neil
& Weigler, Portland, Oregon; Scott J. Horne and Thomas L. Tyler,
Washington, D.C.; Todd E. Thompson, Howard, Rice, Nemerovski, Canady, Falk
& Rabkin, San Francisco, California, for the amici.
JUDGES: Before: Andrew J. Kleinfeld and Michael Daly
[**2] Hawkins, Circuit Judges, and William W Schwarzer,
*
Senior District Judge. Opinion by Judge Schwarzer.
* The Honorable William
W Schwarzer, Senior United
States District Judge for the Northern
District of California, sitting by designation.
OPINION BY: WILLIAM W SCHWARZER
OPINION
[*1019] OPINION
SCHWARZER, Senior District Judge:
In August 1995, Washington County,
Oregon, (the County) cited
Woodfeathers, Inc., for violating its solid waste ordinance by transporting and
disposing of solid waste without a County certificate. Proceedings began in
state court leading eventually to a trial in which Woodfeathers was found in
violation, followed by an appeal by Woodfeathers. While the state court
proceedings were pending, Woodfeathers, in February 1996, filed this action in
the district court, challenging the constitutionality of the ordinance and
seeking relief against its enforcement. The district court refused to abstain
and enjoined enforcement of the ordinance, holding it preempted by federal law
and invalid under the Commerce
Clause. Because we find that the district court erred in failing to abstain
under
Younger
v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971),
[**3] we reverse.
FACTS AND PROCEDURAL HISTORY
Woodfeathers, Inc., is an Oregon
corporation that sells and delivers building materials to roofing contractors.
It also offers its customers a drop box service for disposal of the debris
created by the removal of the old roof. Woodfeathers delivers a box to the
construction site and when filled transports the box to a disposal facility. It
charges contractors a fee for use of the drop box and a disposal fee,
determined by the tonnage of the debris. Some but not all of the roofing debris
(consisting of materials such as wood, asphalt, and tile) is recyclable.
In August 1995, Washington County, a political subdivision of Oregon, cited Woodfeathers for violating the
County's solid waste ordinance. That ordinance makes it unlawful for any person
to collect, store, transport, or dispose of solid waste in the unincorporated
areas of the County for compensation without first obtaining a certificate from
the County.
See
Wash. County
Code § 8.04.120.
1 A
state court trial took place in April or May 1996. The state court rejected
Woodfeathers' defense that the County ordinance was preempted by federal law.
On May 7, 1996, the state trial
[**4] court
entered a judgment finding that Woodfeathers had violated the ordinance and
fined Woodfeathers $ 100. Woodfeathers appealed to the Oregon Court of Appeals
on June 6, 1996, and that appeal remained pending at the time of oral argument
before this court.
FOOTNOTES
1
The ordinance states in relevant part:
Except
as otherwise provided in this chapter, it is unlawful for any person to
collect, store, transport or dispose of any waste or solid waste in the
unincorporated areas of the county for compensation unless he first obtains a
certificate issued by the board [of county commissioners]; or after issuance of
a certificate, to collect, store, transport or dispose of waste or solid waste
in a service area not covered by this certificate, except as otherwise provided
by this chapter.
Wash. County Code
§ 8.04.120.
Meanwhile, on February 21, 1996, Woodfeathers filed this action in the district
court, seeking declaratory and injunctive relief against enforcement of the
ordinance. It contended that the
[**5] ordinance
was preempted by federal law, placed an undue burden on interstate commerce,
and, as applied to Woodfeathers, infringed the equal protection guarantees of
the U.S. and Oregon constitutions.
Following a hearing, the district court on April 5, 1996, preliminarily
enjoined the County from enforcing its ordinance against Woodfeathers. On June
24, 1996, the district court denied the County's motion to dismiss on
Younger
v. Harris abstention grounds, holding that the appellate posture of the
state court proceedings did not provide Woodfeathers an adequate opportunity to
[*1020] raise federal questions. Following a
bench trial, the district court entered judgment determining that the County's
ordinance was invalid in part and enjoining its enforcement in certain
respects. The County appeals the judgment. We have jurisdiction pursuant to 28
U.S.C. §§ 1291, 1331
(1994) and reverse.
DISCUSSION
The threshold issue is whether the district court erred in refusing to abstain.
HN2We
review de novo the district court's refusal to abstain under
Younger
v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).
See Gartrell
Constr. Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. 1991).
[**6] HN3Based
on the notion of comity,
Younger and its progeny "espouse a strong
federal policy against federal-court interference with pending state judicial
proceedings absent extraordinary circumstances."
Middlesex
Co. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431, 73 L. Ed. 2d
116, 102 S. Ct. 2515 (1982). "
Younger is an exception to the
usual rule that federal courts should exercise the jurisdiction conferred on them
by statute."
Gartrell,
940 F.2d at 441. Originally applicable to state criminal proceedings, the
doctrine has been extended to state civil proceedings where important state
interests are involved.
See Middlesex
Co. Ethics Comm., 457 U.S. at 432. Thus, under
Younger a federal
court should abstain if "(1) there are ongoing state judicial proceedings,
(2) the proceedings implicate important state interests, and (3) there is an
adequate opportunity in the state proceedings to raise federal questions."
Gartrell,
940 F.2d at 441 (citing
Middlesex,
457 U.S. 423 at 432).
The district court correctly found that state judicial proceedings were
pending.
Hawaii
Hous. Auth. v. Midkiff, 467 U.S. 229, 238, 81 L. Ed. 2d 186, 104 S. Ct.
2321 (1984),
[**7] is distinguishable
because, as the Court pointed out in rejecting the
Younger abstention
argument in that case, state judicial proceedings had not been initiated at the
time proceedings of substance took place in federal court.
See also Polykoff
v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987) (
Younger
abstention appropriate where state court complaint was filed two days before
federal court hearing on a motion for preliminary injunction);
Kitchens
v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987) ("The critical
question is . . . whether 'the state proceedings were underway before the
initiation of the federal proceedings.'") (quoting
Fresh
Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1358 (9th
Cir. 1986)).
The district court declined to abstain, however, holding that the second and
third requirements had not been satisfied. It held, first, that the posture of
the state proceedings did not provide an adequate opportunity to raise the
federal question; and, second, that the state proceedings did not implicate
important state interests because federal preemption rendered the ordinance
ineffectual.
A.
Adequate Opportunity to Raise Federal Question
[**8] The district court, without explanation,
found that in the posture of the state court proceedings, then on appeal, they
did not provide an adequate opportunity to raise federal questions.
HN4Younger
abstention applies with equal force, however, without regard to whether the
state proceedings are pending in the trial or appellate court.
See Huffman
v. Pursue, Ltd., 420 U.S. 592, 608, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975)
("Virtually all of the evils at which Younger is directed would inhere in
federal intervention prior to completion of state appellate proceedings, just
as surely as they would if such intervention occurred at or before
trial.").
HN5State
courts are presumed adequate to raise federal questions "in the absence of
unambiguous authority to the contrary,"
see Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 15, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (1978),
unless state procedural rules bar raising the federal questions,
see Hirsh
v. Justices of the Sup. Ct. of Cal., 67 F.3d 708, 713 (9th Cir. 1995).
No bar existed in this case -
[*1021] indeed,
Woodfeathers argued preemption in both the state trial and appellate courts.
The district court therefore erred in finding that this prong of
[**9] Younger had not been satisfied.
B.
Important State Interest Implicated
The district court concluded that "the state proceeding will not implicate
important state interests where the law sought to be enforced is rendered
ineffectual on account of federal preemption." It held that the solid
waste ordinance was preempted by section 601(c) of the Federal Aviation
Administration Authorization Act of 1994 (FAAAA). Section 601(c) amended the
Interstate Commerce Act to expressly preempt state regulation of motor carriers
transporting property:
HN6A
State [or] political subdivision of a State . . . may not enact or enforce a
law, regulation, or other provision having the force and effect of law related
to a price, route, or service of any motor carrier . . . with respect to the
transportation of property.
FAAAA of 1994, Pub. L. No.
103-305, § 601(c) (now codified at 49
U.S.C. § 14501(c)(1) (Supp. II 1996)). Woodfeathers contended that because
the roofing debris which it transports is recyclable and picked up pursuant to
commercial contracts rather than a residential curbside collection program, it
is property within the preemptive scope of section 601(c). The district
[**10] court agreed, holding that "property"
as used in section 601(c) includes "recyclable materials, when collected
in an industrial context for the purpose of recycling."
As an initial matter we must decide whether, without regard to the issue of
federal preemption, local control of waste disposal and recycling involves an
important state interest.
HN7The
County has officially declared solid waste to be a nuisance.
See Wash.
County Ord.
§ 8.04.420; Or.
Rev. Stat. § 203.065(3) (1995). Civil actions brought by a government
entity to enforce nuisance laws have been held to justify
Younger
abstention.
See Huffman,
420 U.S. at 604 (abstention was appropriate where state brought civil
action against theater displaying obscene movies in violation of state nuisance
law because "an offense to the State's interest in . . . nuisance
litigation is likely to be every bit as great as it would be were this a
criminal proceeding");
World
Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th
Cir. 1987) (civil action brought by municipality "to obtain compliance
with [municipal zoning] ordinance which aims at avoidance of public
nuisances" implicates important state
[**11]
interests justifying abstention). We conclude that the County's enforcement of
its solid waste ordinance implicates important state interests for the purpose
of
Younger v. Harris.
We now reach the issue whether the district court correctly decided that the
FAAAA preempts the County's ordinance. In the posture of this proceeding, our
inquiry is limited. Were we to make the determination whether to abstain turn
on whether a state law is preempted, we "would render
Younger a
nullity."
Fresh
Int'l, 805 F.2d at 1361 (quoting
Worldwide
Church of God, Inc. v. California, 623 F.2d 613, 616 (9th Cir. 1980)).
The question before us therefore is whether "[
HN8federal]
preemption [of the state law at issue] is "readily apparent."
Fresh
Int'l, 805 F.2d at 1361 (citing
Baggett
v. Department of Prof'l Regulation, Bd. of Pilot Comm'rs, 717 F.2d 521, 524
(11th Cir. 1983)). "In such a case, the state tribunal is acting
beyond its authority and
Younger abstention is not required."
Gartrell,
940 F.2d 437 at 441. We have held preemption to be readily apparent where
the Supreme Court had previously decided the issue,
see id.; where the
state law fell under the express preemption
[**12]
clause of the Employment Retirement Income Security Act of 1974 (ERISA),
see
Champion
Int'l Corp. v. Brown, 731 F.2d 1406, 1408 (9th Cir. 1984); and where
the federal regulatory jurisdiction of the employees in a bargaining unit had
previously been determined.
See Bud
Antle, Inc. v. Barbosa, 45 F.3d 1261, 1273 (9th Cir. 1994).
See also
Bagget,
717 F.2d at 523-24 (federal preemption of state disciplinary proceeding
[*1022] of marine pilot readily apparent where
Congress had provided for exclusive jurisdiction over the control and direction
of vessels in United States waters).
This is not such a case.
HN9Whether
recyclable materials are "property" under section 601(c) is a
question of first impression. No court has yet decided whether section 601(c)
preempts local solid waste ordinances. The Interstate Commerce Act does not
define "property."
See Interstate
Commerce Comm'n v. Browning-Ferris Indus., Inc., 529 F. Supp. 287, 289
(N.D. Ala. 1981) ("Congress conspicuously omitted a definition of
'property' from the Interstate Commerce Act."). The only pre-enactment
legislative history, whatever force it may have, addressing the meaning of
"property" states that section 601(c) "does
[**13] not preempt State regulation of garbage and
refuse collectors" because "under ICC case law, garbage and refuse
are not considered 'property.'"
See H.R. Conf. Rep. No. 103-677 at
85 (1994),
reprinted in 1994 U.S.C.C.A.N. 1754, 1757.
2
ICC case law, however, is equivocal.
Compare Joray Trucking Corp. v. Common
Carrier Application, 99 M.C.C. 109, 110 (1965) (holding that debris from
excavation and demolition sites is not property under the Interstate Commerce
Act),
with Transportation of "Waste" Prods. for Reuse and
Recycling, 114 M.C.C. 92, 105 (1971) (distinguishing
Joray because
recyclables, in contrast to the demolition debris, "have been purchased
and will not merely be discarded but, rather, will become vital elements in the
manufacturing process in which they are to be utilized"),
and
Transportation of "Waste" Prods.
for Reuse and Recycling, 124 M.C.C. 583, 604 (1976). We conclude that
federal preemption of the County's ordinance is not readily apparent. We do not
intimate any view on whether materials an owner wishes to discard, whether
recyclable or not, are "property" for purposes of 49
U.S.C. § 14501(c), and decide only that the answer to that question
[**14] is not so "readily apparent" as to
defeat
Younger abstention.
FOOTNOTES
2
The ICC was abolished and its functions were transferred to the Surface
Transportation Board effective January 1, 1996.
See Interstate Commerce
Commission Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803.
Because the district court should have abstained we do not reach the Commerce
Clause or Equal Protection Issues.
The judgment is REVERSED and the matter REMANDED with directions to DISMISS
without prejudice.
