[00:00:00] Speaker 00:
The second case for this morning is 22-2132, United States versus New Mexico Environment Department.

[00:00:11] Speaker 00:
Counsel for appellant, if you'd make your appearance and proceed, please.

[00:00:20] Speaker 04:
May it please the Court, my name is Alan Brabender, and I represent the United States.

[00:00:25] Speaker 04:
If I may, I'd like to reserve two minutes for rebuttal.

[00:00:28] Speaker 04:
This is a suit.

[00:00:29] Speaker 04:
brought by the United States on behalf of the United States Air Force, challenging a permit issued by the New Mexico Environment Department under the state's federally approved Resource Conservation and Recovery Act.

[00:00:43] Speaker 04:
The United States brought suit in both federal court and state court, but the state court case was stayed soon after its inception.

[00:00:51] Speaker 04:
The parties then spent the next three and a half years litigating in federal court in the matter

[00:00:56] Speaker 04:
became ripe for summary judgment on cross motions.

[00:00:59] Speaker 04:
But the district court didn't act on those motions.

[00:01:02] Speaker 04:
It decided, sous sponte and without notice to the parties, to dismiss for a lack of subject matter jurisdiction, because the court said that the record waiver of sovereign immunity, which requires federal agencies to comply with state procedural requirements, meant that the state permit could only be challenged in state court.

[00:01:23] Speaker 04:
The court went on to say that it would abstain from the exercise

[00:01:26] Speaker 04:
jurisdiction, even if it had it under the Colorado River Abstention Doctrine.

[00:01:31] Speaker 04:
We believe these decisions were in error.

[00:01:34] Speaker 04:
28 U.S.C.

[00:01:35] Speaker 04:
1345 provides the district court with jurisdiction because the United States commenced this suit, and nothing in RCRA changes that fact.

[00:01:44] Speaker 04:
There are also no exceptional circumstances warranting abstention.

[00:01:50] Speaker 04:
First, I'll start with subject matter jurisdiction, then I'll move to abstention.

[00:01:54] Speaker 00:
And I take it for jurisdictional purposes you aren't relying on 1331.

[00:01:58] Speaker 00:
You at one point did in this litigation early on, it's my understanding.

[00:02:03] Speaker 04:
We did.

[00:02:03] Speaker 04:
We did not appeal that issue to this court.

[00:02:05] Speaker 04:
We're relying exclusively on 1345, Your Honor.

[00:02:08] Speaker 00:
All right.

[00:02:09] Speaker 04:
And as mentioned, 1345 provides jurisdiction to federal district courts and all civil actions commenced by the United States.

[00:02:17] Speaker 04:
The United States is the plaintiff here, so the district court had jurisdiction.

[00:02:21] Speaker 04:
Exceptions to 1345 may be had as otherwise provided by Congress, but this is a very narrow exception.

[00:02:29] Speaker 04:
A party wishing to divest a court of its 1345 jurisdiction faces a high hurdle.

[00:02:34] Speaker 04:
It must show an affirmative intent by Congress to repeal Section 1345, which New Mexico concedes is not the case here.

[00:02:43] Speaker 04:
The only other way to show that a court is divested of its 1345 jurisdiction

[00:02:47] Speaker 04:
is to show that the exercise of 1345 jurisdiction is irreconcilable with some other act of Congress that is alleged to be RCRA here.

[00:02:58] Speaker 04:
But neither the district court nor New Mexico have shown that 1345 and RCRA are irreconcilable.

[00:03:05] Speaker 04:
The district court, for its part, employed the wrong standard.

[00:03:08] Speaker 04:
It didn't employ the irreconcilability standard.

[00:03:12] Speaker 04:
New Mexico doesn't defend the district court's use of the incorrect standard here.

[00:03:16] Speaker 04:
New Mexico instead argues that RCRA, which was enacted after 1345, implied least strips federal courts of their jurisdiction because federal agencies must comply with state procedural requirements to the same extent as any other person.

[00:03:32] Speaker 04:
But this argument is inconsistent with the Colorado River case, which held that 1345 may not be defeated by mere implication flowing from subsequent legislation, implied

[00:03:43] Speaker 04:
Conflict is insufficient.

[00:03:45] Speaker 04:
Two statutes must be irreconcilable, because courts have an obligation to give effect to all statutes.

[00:03:52] Speaker 04:
And here, 1345 and RCRO may be reconciled in various ways.

[00:03:57] Speaker 04:
It may be reconciled, or they may be reconciled, with the recognition that the two statutes address different subjects.

[00:04:04] Speaker 04:
1345 addresses subject matter jurisdiction, while RCRO 6961A addresses sovereign immunity.

[00:04:12] Speaker 04:
The RCRA waiver of sovereign immunity does not address the forum for judicial review.

[00:04:17] Speaker 04:
The procedural requirements language addresses, as this court has said in the 1994 decision, US v. New Mexico, the mechanisms for implementing the substantive standards, such as permit requirements, reporting duties, monitoring duties, and submission to state inspections.

[00:04:37] Speaker 04:
And even if the procedural requirements did address subject matter jurisdiction, that would just mean that the federal and state courts have concurrent jurisdiction.

[00:04:46] Speaker 04:
And as the Supreme Court held in Colorado River, there is no irreconcilability in the existence of concurrent state and federal court jurisdiction.

[00:04:56] Speaker 02:
Is there anything in the Hazardous Waste Act that indicates that it's exclusive jurisdiction in the state appellate court?

[00:05:05] Speaker 04:
No, there isn't, in fact.

[00:05:07] Speaker 04:
The RCRA statute itself, the River of Suffering Unity, contemplates both state and federal court jurisdiction.

[00:05:14] Speaker 04:
And I would also note that it defines the requirements.

[00:05:19] Speaker 04:
It defines requirements as those respecting control and abatement of solid or hazardous waste disposal and management, which is, of course, not subject matter jurisdiction.

[00:05:31] Speaker 04:
The Supreme Court in the Colorado River case actually addressed 1345.

[00:05:36] Speaker 04:
And it held that there was no intent to repeal 1345 in that case, despite the McCarran Amendment, which was the law at issue, subjecting federal agencies to state water rights adjudications in state court jurisdiction explicitly in the same manner and to the same extent as a private individual in like circumstances.

[00:05:57] Speaker 04:
Despite that language,

[00:05:59] Speaker 04:
The Supreme Court held that there was no intent to divest the federal courts of their 1345 jurisdiction.

[00:06:08] Speaker 04:
We would ask this court to follow the mode of analysis of Colorado River and to find that the district court erred in finding that it lacked 1345 jurisdiction.

[00:06:18] Speaker 02:
If a private citizen were in the same situation as the United States here,

[00:06:27] Speaker 02:
they would not have an opportunity to bring a claim in federal court, right?

[00:06:32] Speaker 02:
They'd have to follow the procedure set out in the Hazardous Waste Act.

[00:06:38] Speaker 04:
That's correct.

[00:06:39] Speaker 04:
The 11th Amendment would prohibit a private individual.

[00:06:43] Speaker 02:
So by allowing the United States to come to federal court under 1345, are they being treated with the same procedures

[00:06:56] Speaker 02:
under the Hazardous Waste Act as a private citizen, and isn't that a requirement?

[00:07:01] Speaker 04:
No.

[00:07:02] Speaker 04:
As I said earlier, the procedural requirements do not address subject matter jurisdiction.

[00:07:08] Speaker 04:
The statute itself defines requirements to be those respecting hazardous waste control and abatement.

[00:07:15] Speaker 04:
This court in the 1994 decision, US v. New Mexico, found that the procedural requirements

[00:07:23] Speaker 04:
refer to those mechanisms for implementing the substantive standards.

[00:07:27] Speaker 04:
That's like the permitting requirements, fees, reporting and monitoring duties, and submission to state inspection.

[00:07:35] Speaker 04:
I think it's also important for the court to understand

[00:07:38] Speaker 04:
where the origin of that procedural requirements language, in early environmental statutes like the Clean Water Act, Clean Air Act, required federal agencies to comply with state Clean Water Act standards or Clean Air Act standards.

[00:07:54] Speaker 04:
But the federal agencies took the position that that only meant that they needed to comply with the substantive standards, not that they didn't need to get state permits or pay state fees.

[00:08:04] Speaker 04:
That question was then litigated all the way up to the Supreme Court in two cases, Hancock versus Trane and EPA versus California.

[00:08:14] Speaker 04:
And the Supreme Court ended up siding with the federal agencies, found that the waiver only applied to substantive standards, not to procedural requirements.

[00:08:22] Speaker 04:
Congress thereafter changed the law to require federal agencies to comply not only with the substantive standards, but also the procedural requirements, such as obtaining permits.

[00:08:33] Speaker 04:
And for all these reasons, we think the district court erred in finding it lacked subject matter jurisdiction.

[00:08:40] Speaker 03:
Isn't there a similar provision in the McCarran Act, 43 U.S.C.

[00:08:47] Speaker 03:
666A?

[00:08:49] Speaker 03:
It doesn't script jurisdiction, but it says U.S.

[00:08:52] Speaker 03:
is subject to procedural requirements in the same manner extent as other persons.

[00:08:57] Speaker 04:
That's correct.

[00:08:57] Speaker 04:
And despite that language, the Supreme Court said that that language did not divest.

[00:09:02] Speaker 04:
the federal court of its 1345 jurisdiction, and that there was concurrent jurisdiction with state courts.

[00:09:11] Speaker 04:
We believe the district court also abused its discretion and erred in abstaining under Colorado River.

[00:09:18] Speaker 04:
As the Supreme Court stated in Colorado River, federal courts have a virtually unflagging obligation to exercise the jurisdiction that's been provided to it.

[00:09:27] Speaker 04:
It's only in exceptional circumstances that a court may abstain.

[00:09:31] Speaker 00:
I want to make sure I understand your answer to the question of if procedural requirements does encompass, if that language in 69, 61 does encompass the opportunity to pursue an appeal in the New Mexico Court of Appeals, if it does encompass that, is the, what is the answer to the question of whether, of the fact that the United States and a private citizen would not be treated

[00:10:00] Speaker 00:
the same.

[00:10:01] Speaker 00:
I mean, how does one respond if that is the premise?

[00:10:07] Speaker 04:
If the premise is that procedural requirements takes into account subject matter jurisdiction?

[00:10:12] Speaker 00:
Correct.

[00:10:13] Speaker 04:
That would just mean that the state and federal courts have concurrent jurisdiction, that the state of New Mexico could sue the United States in state court.

[00:10:22] Speaker 04:
But of course, the federal agency being sued could always remove that state filed action

[00:10:27] Speaker 04:
to federal court under 28 USC 1442.

[00:10:30] Speaker 00:
I am sorry if I wasn't clear.

[00:10:31] Speaker 00:
I think initially when the question was raised by Judge McHugh about the fact that there would be disparate treatment between the United States and a private citizen, at least your initial response, as I understood it, was that procedural requirements do not encompass subject matter jurisdiction, so there's not a problem, okay?

[00:10:49] Speaker 00:
That's correct.

[00:10:50] Speaker 00:
All right, my point is if that is not the scenario, if procedural requirements do encompass subject matter jurisdiction,

[00:10:56] Speaker 00:
What is your response to your question about the fact that there's disparate treatment between the United States and private citizens?

[00:11:03] Speaker 00:
How do we square that with the language of the statute?

[00:11:07] Speaker 04:
It would just mean, again, that what that would mean would be concurrent jurisdiction in state court.

[00:11:14] Speaker 00:
That's still not answering the disparate treatment question, which is that the United States would be able to do something that the private citizen in New Mexico would not be able to do.

[00:11:25] Speaker 04:
Well, there would be, I guess, disparate treatment in that case, Your Honor.

[00:11:28] Speaker 00:
OK.

[00:11:31] Speaker 03:
Does it matter in that regard that if you're in federal court, if this stays in federal court under 1345 and there's no abstention, is it if there was New Mexico precedent that the federal court would be obligated to follow that?

[00:11:50] Speaker 03:
Substantively.

[00:11:52] Speaker 03:
Isn't that correct?

[00:11:52] Speaker 03:
Correct.

[00:11:53] Speaker 03:
Does that reflect upon this issue we're discussing right now?

[00:11:57] Speaker 04:
No, I don't believe so, Your Honor.

[00:11:59] Speaker 03:
Because it's substantive rather than procedural?

[00:12:04] Speaker 03:
Well, that's not a requirement.

[00:12:06] Speaker 03:
What benefit is there to the forum of federal court versus the state court of appeals?

[00:12:17] Speaker 04:
Well, the federal government prefers to litigate in federal court.

[00:12:21] Speaker 03:
No, I'm asking you, what benefit is there?

[00:12:26] Speaker 04:
Well, among other benefits.

[00:12:27] Speaker 03:
Other than a forum.

[00:12:29] Speaker 04:
Among other benefits, the federal forum provides more definite appeal rights.

[00:12:35] Speaker 04:
The state court forum, there's no right to appeal a decision of this state court of appeals.

[00:12:42] Speaker 04:
So that's one of the reasons why we are pursuing the case in federal court instead of in state court.

[00:12:49] Speaker 02:
Let me, before you run out of time, assuming I agree with you that Colorado River was the wrong abstention doctrine, why doesn't this fall under Buford abstention?

[00:13:06] Speaker 04:
Sure.

[00:13:06] Speaker 04:
Buford wasn't a very extraordinary case, Your Honor.

[00:13:09] Speaker 04:
And this case doesn't rise to that level.

[00:13:14] Speaker 04:
There is no ongoing state administrative

[00:13:16] Speaker 04:
Proceeding at issue, there are no difficult questions of state law.

[00:13:21] Speaker 04:
This isn't just an ordinary administrative law challenge.

[00:13:25] Speaker 04:
There's only one permit at issue applicable to only one federal facility.

[00:13:30] Speaker 04:
Burford didn't involve the United States or Section 1345 jurisdiction, which exists to give the United States the protection of the federal forum and should be considered in any abstention doctrine.

[00:13:41] Speaker 04:
While regulating groundwater is

[00:13:43] Speaker 04:
no doubt complex.

[00:13:44] Speaker 04:
It's not nearly as complex as regulating the oil and gas industry discussed in Burford.

[00:13:50] Speaker 04:
And at the very least, the district court should have to make fact findings on that issue.

[00:13:54] Speaker 04:
There's no history here of federal decisions creating confusion in the state court system, as there was in Burford.

[00:14:00] Speaker 04:
And there's no intricate system of judicial review where cases are funneled to special state courts with specialized knowledge.

[00:14:08] Speaker 04:
Those all facts distinguish this case.

[00:14:10] Speaker 02:
All the appeals go to the court of appeals, right?

[00:14:14] Speaker 04:
True, but that is a court of generalized jurisdiction, just like the federal district courts.

[00:14:18] Speaker 02:
But if they always hear these appeals, they develop an expertise in that area.

[00:14:25] Speaker 04:
Perhaps, although there's not that many challenges to state permits, particularly from the federal government.

[00:14:31] Speaker 04:
And if I may reserve the remaining time.

[00:14:33] Speaker 03:
Do they take evidence?

[00:14:35] Speaker 04:
The state court of appeals, no.

[00:14:37] Speaker 04:
They do not.

[00:14:40] Speaker 04:
may reserve the remaining time.

[00:14:41] Speaker 04:
Thank you.

[00:15:01] Speaker 01:
Good morning and may it please the court?

[00:15:03] Speaker 01:
Esther Jamieson on behalf of the New Mexico Environment Department and Secretary James Kenney.

[00:15:08] Speaker 01:
At council table with me is William Grantham, Director of the Environmental Protection Division at the New Mexico Department of Justice.

[00:15:15] Speaker 01:
In the Resource Conservation and Recovery Act, and again in the Federal Facilities Compliance Act, Congress made it clear that federal facilities such as Cannon Air Force Base must be subject to the same substantive and procedural requirements as any other person.

[00:15:31] Speaker 01:
New Mexico has a vital and immutable interest in protecting human health and the environment within its borders and responding in a timely manner to PFAS contamination, an issue of substantial public concern.

[00:15:45] Speaker 01:
New Mexico has a karate interest in maintaining the procedural integrity of the state's Hazardous Waste Act and ensuring that it is applied consistently and across the board, no matter the identity of the permittee.

[00:15:58] Speaker 01:
In the case below, the United States challenged the Environment Department's statutory authority to require corrective action for PFAS, a class of highly toxic substances.

[00:16:09] Speaker 01:
Just as the United States resisted the permit's substantive requirements based on its own reading of the state's Hazardous Waste Act,

[00:16:17] Speaker 01:
It now resists the Hazardous Waste Act's procedural requirements, which include the jurisdictional provision that appeals of final agency decisions be reviewed before the New Mexico Court of Appeals.

[00:16:30] Speaker 00:
Even if that procedural requirement, which is part of the federal statute, even if that term does encompass subject matter jurisdiction,

[00:16:40] Speaker 00:
it seems to me, why does that have to be exclusive subject matter jurisdiction?

[00:16:44] Speaker 00:
I mean, by its own terms, the New Mexico statute says the secretary may appeal, which in itself does not speak to the notion of some sort of mandatory obligation.

[00:16:56] Speaker 00:
And so why is this any jurisdiction that is conferred procedurally by the federal statute, why is that exclusive jurisdiction?

[00:17:07] Speaker 01:
It's exclusive in the sense that, as Your Honor's line of questioning just now was, that 6961 provides a rule decision whereby the United States should be treated the same as any other person.

[00:17:19] Speaker 01:
Now, of course, the United States is correct.

[00:17:21] Speaker 01:
The word jurisdiction is not in that statute.

[00:17:25] Speaker 01:
That's because jurisdictional provisions are scattered throughout both the federal RCRA and the State Hazardous Waste Act.

[00:17:31] Speaker 01:
For example,

[00:17:32] Speaker 01:
So not all states have a hazardous waste act.

[00:17:37] Speaker 01:
Alaska, for example, does not.

[00:17:39] Speaker 01:
So in those states, there's only federal administration of hazardous waste through RCRA.

[00:17:45] Speaker 01:
So 6961, for example, has to describe systems which are purely federal enforcement and systems which have the state enforcement mechanisms.

[00:17:55] Speaker 01:
And so this catch-all language basically creates a rule

[00:17:59] Speaker 01:
treat the United States, when it has jurisdiction over a facility like Cannon, treat it the same as any other person.

[00:18:06] Speaker 01:
So if you're in the State Hazardous Waste Act, for example, you want to appeal a permit, that would go to the New Mexico Court of Appeals.

[00:18:13] Speaker 00:
Well, that doesn't answer the question.

[00:18:16] Speaker 00:
The fact of the matter is that the United States can avail itself of the New Mexico Court of Appeals, just like any other New Mexico citizen.

[00:18:24] Speaker 00:
That doesn't say anything about whether the United States is locked into the New Mexico Court of Appeals.

[00:18:29] Speaker 00:
and cannot seek relief elsewhere.

[00:18:32] Speaker 00:
So it doesn't answer the question of exclusive jurisdiction.

[00:18:36] Speaker 00:
That's the first point.

[00:18:37] Speaker 00:
And if I can indulge on the second point.

[00:18:39] Speaker 00:
The second point is when I think, when I thought about the question that I asked the United States, it seems to me that one response that is possible is that the focus of the statute is what New Mexico does or any state does vis-a-vis the United States.

[00:18:52] Speaker 00:
It is not what the United States can do based upon some other statute.

[00:18:56] Speaker 00:
In other words,

[00:18:57] Speaker 00:
The United States is treated the same as any New Mexico citizen vis-a-vis or entity vis-a-vis its regulatory regime.

[00:19:06] Speaker 00:
But why does that mean the United States does not have, by virtue of its another statute, the right to avail itself of other remedies elsewhere?

[00:19:15] Speaker 01:
I'm not sure I entirely understand, Your Honor.

[00:19:17] Speaker 00:
Well, let's break it down, OK?

[00:19:20] Speaker 00:
Let's start with exclusive jurisdiction.

[00:19:23] Speaker 00:
What about this regulatory scheme suggests that New Mexico has exclusive jurisdiction to deal with this matter?

[00:19:31] Speaker 00:
Let's start there.

[00:19:33] Speaker 01:
Because in 74-414,

[00:19:34] Speaker 01:
It says any person, so that includes the United States, who is or may be affected by a final administrative action of the board or the secretary may appeal.

[00:19:43] Speaker 01:
And that may is permissive as to whether they want to take the appeal or not, not permissive as to the forum.

[00:19:49] Speaker 00:
All right.

[00:19:49] Speaker 00:
And I'm looking at that same provision right now, but that doesn't say anything about the fact that that has to be the exclusive venue for any individual or any entity doesn't say that.

[00:20:01] Speaker 00:
And number two, even if it did say that, New Mexico can't strip the United States of jurisdiction that a federal statute provides to it, right?

[00:20:10] Speaker 01:
We're not arguing that New Mexico strips the United States of that jurisdiction.

[00:20:14] Speaker 01:
We're arguing that Congress's intent through 6961A, that intent is the acceptors provided by Congress exception to jurisdiction under 1345.

[00:20:25] Speaker 00:
And we're having a dialogue, not an argument.

[00:20:28] Speaker 00:
And to the point on the dialogue,

[00:20:31] Speaker 00:
I still don't understand here the answer to the question.

[00:20:35] Speaker 00:
Even if that procedural requirements section includes subject matter jurisdiction, okay, so it includes subject matter jurisdiction, why does it have to be exclusive?

[00:20:47] Speaker 00:
In other words, why can't the United States say, wow, I have this venue, I can seek relief, I'll be treated the same as any New Mexico citizen in that venue.

[00:20:57] Speaker 00:
Congress gave me 3145, I guess it is, and therefore I can go elsewhere.

[00:21:04] Speaker 01:
I think I don't have another answer for you, Your Honor, other than the fact that we believe congressional intent in 6961A was that if the United States is treated just as any other person, they would, and if they're in

[00:21:17] Speaker 01:
the State How Does Waste Act, then they would review agency decisions to the New Mexico Court of Appeals.

[00:21:23] Speaker 01:
So if this court is not convinced by the implied appeal argument, we would like to urge this court to apply congressional intent and congressional policy to the abstention issues.

[00:21:33] Speaker 01:
And so the district court did not abuse its discretion in abstaining in this case.

[00:21:39] Speaker 01:
It made a finding under Colorado River abstention that this case did present exceptional circumstances.

[00:21:45] Speaker 01:
It construed its understanding of piecemeal litigation in light of congressional policy in 6961A.

[00:21:53] Speaker 01:
Obviously, that's a different congressional policy than what's present in the McCarran Amendment.

[00:21:58] Speaker 02:
Don't we have cases that suggest that if the one action is stayed, that you don't have a risk of piecemeal litigation?

[00:22:08] Speaker 02:
I mean here, both actions were filed on the same day and they're the same issues.

[00:22:13] Speaker 02:
So you have parallel actions and you don't have one that was filed before the other.

[00:22:19] Speaker 02:
But because of the stay, it obviates the risk of piecemeal litigation, doesn't it?

[00:22:28] Speaker 01:
That is definitely a way in which this is a different kind of, the district court understood this to be a different kind of piece of litigation.

[00:22:35] Speaker 01:
The district court's understanding of piece of litigation was that divergent precedents would be created, one for the United States in federal court when the United States is a permittee, and the other line of precedent for everybody else.

[00:22:47] Speaker 02:
Well, because I think everyone agrees that even if it is tried in federal court,

[00:22:56] Speaker 02:
the issues will be determined under New Mexico law.

[00:23:01] Speaker 02:
I'm not sure I'm convinced that you're necessarily going to have divergent laws because the federal court is going to be watching what the state court is doing and has to, under diversity, follow that law.

[00:23:18] Speaker 01:
Well, I think if there was state court precedent on this issue, that would have some force.

[00:23:24] Speaker 01:
But the state courts have not yet had an opportunity to address these issues.

[00:23:28] Speaker 01:
This is a novel question of law.

[00:23:30] Speaker 01:
This would be a case of first impression for the state courts.

[00:23:34] Speaker 01:
And so if the federal district court decides this case, it has no guidance from the state courts.

[00:23:40] Speaker 01:
And there might be a time where we have different federal common law.

[00:23:47] Speaker 01:
precedent applied to the United States and precedent applied to other people.

[00:23:52] Speaker 00:
I think as Judge McHugh is trying to get at it, it's not going to be a question of federal common law.

[00:23:57] Speaker 00:
Because let's assume in this instance on this question of first impression that the federal court interprets New Mexico law to say A. Then a case come along in the New Mexico Court of Appeals that says B. Well,

[00:24:11] Speaker 00:
As time goes on, the federal court is going to have to figure out a way to try to align itself with what the New Mexico Supreme Court, for example, says the law is, right?

[00:24:23] Speaker 00:
So eventually, it's going to militate towards B. Eventually, yes.

[00:24:27] Speaker 01:
The district court wouldn't necessarily be bound by a New Mexico Court of Appeals decision, so it would have to wait for it to go to the New Mexico Supreme Court.

[00:24:35] Speaker 01:
I agree, Your Honor.

[00:24:35] Speaker 01:
Over time, that is the case.

[00:24:38] Speaker 02:
Well, whether they're bound

[00:24:40] Speaker 02:
we look to the highest court in the state that's decided the issue.

[00:24:46] Speaker 02:
While we prefer a Supreme Court case, we certainly are influenced by a Court of Appeals decision.

[00:24:53] Speaker 02:
But I think the problem that I see in the District Court's assessment of piecemeal litigation is that under the Colorado River Doctrine, we're looking at piecemeal litigation in a single case.

[00:25:06] Speaker 02:
We're not looking at sort of this, you know,

[00:25:10] Speaker 02:
projection on the future.

[00:25:12] Speaker 02:
It's in this case.

[00:25:13] Speaker 02:
And I don't see a risk of piecemeal litigation where you don't have two cases proceeding simultaneously.

[00:25:21] Speaker 02:
You have one that has been stayed and one that's moving forward.

[00:25:26] Speaker 01:
Yes, Your Honor, it's possible.

[00:25:27] Speaker 01:
And as we said in that 28-J letter, it's possible that an administrative compliance order might be litigated in state court.

[00:25:35] Speaker 01:
And if it goes to federal or district court, because it would be a civil enforcement proceeding, it would be subject to younger abstention.

[00:25:41] Speaker 01:
So it's possible in the future that that might happen.

[00:25:44] Speaker 01:
But I'd like to move on to the Brillhart question, because I do think that the question issued.

[00:25:49] Speaker 02:
Brillhart, I have trouble with that one.

[00:25:53] Speaker 02:
Because you're not only seeking declaratory relief.

[00:25:58] Speaker 01:
You want it set aside.

[00:26:02] Speaker 01:
So the United States says that it's asking for an injunction.

[00:26:05] Speaker 01:
We don't know what that injunction is.

[00:26:06] Speaker 01:
We don't know what the United States is seeking or whom the United States is seeking to enjoin here.

[00:26:12] Speaker 03:
Will they want to enjoin execution of the permit according to the terms New Mexico provided?

[00:26:21] Speaker 03:
That's what they're doing.

[00:26:23] Speaker 03:
They want to stop New Mexico from enforcing that permit.

[00:26:26] Speaker 03:
Isn't that clear?

[00:26:28] Speaker 01:
So if that's the case, Your Honor, then the United States will be asking the federal district court to enjoin the secretary, the state official, not from violating any federal law, but from exceeding an agency's authority according to state law and putting to the United States construction.

[00:26:48] Speaker 03:
You know, it may be a loser.

[00:26:51] Speaker 03:
But they asked for an injunctive relief, didn't they?

[00:26:53] Speaker 03:
And as a consequence, does that distinguish this from Brillhart?

[00:26:59] Speaker 03:
Brillhart just does not apply.

[00:27:02] Speaker 01:
Well, I think this case is similar to your honest analysis in the city of Las Cruces, where they also declared you relief, and there was no additional coercive relief.

[00:27:12] Speaker 01:
I don't hear coercion.

[00:27:14] Speaker 01:
I don't understand how vacating a permit is coercive relief, because I don't think you can coerce or enjoin a permit.

[00:27:21] Speaker 01:
So unless there's a specific injunction in joining an official or an entity that has agency.

[00:27:28] Speaker 03:
Well, if a determination is made that the permit

[00:27:31] Speaker 03:
is essentially, I don't want to use the legal term, ultra-virus.

[00:27:35] Speaker 03:
And that is that it's not in accordance with New Mexico law.

[00:27:40] Speaker 03:
So then it could be enjoined by any court who has jurisdiction.

[00:27:46] Speaker 01:
So if there is injunctive relief here, and we are not under Brillhart,

[00:27:50] Speaker 01:
then I do think the federalism issues come into play here.

[00:27:54] Speaker 01:
There is a risk.

[00:27:56] Speaker 01:
Yeah, exactly.

[00:27:56] Speaker 01:
Moving on to Burford abstention.

[00:27:58] Speaker 01:
So in Burford, we have all the threshold requirements for Burford.

[00:28:03] Speaker 01:
Timely and adequate state court review is available.

[00:28:07] Speaker 01:
The federal court is sitting in equity.

[00:28:08] Speaker 01:
If we acknowledge there's injunctive relief too, that's still just equity.

[00:28:12] Speaker 01:
And I don't believe there has to be an ongoing state administrative proceeding for Bertha to apply.

[00:28:19] Speaker 01:
The test is saying that the court must decline to interfere with proceedings or orders of state administrative agencies.

[00:28:27] Speaker 01:
And there are two destructive prongs in Burford.

[00:28:30] Speaker 01:
One is whether there are difficult questions of state law that bear on policy problems of substantial public import, of which PFAS contamination is certainly one, or where the exercise of federal review would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.

[00:28:50] Speaker 01:
And that, obviously, a matter of substantial public concern is not only hazardous waste in general, but PFAS specifically.

[00:29:00] Speaker 01:
And there's this court's unpublished opinion in Wildgrass, which I cite in that brief, which I think is, though it's an unpublished case, I think it's pretty persuasive to our case here.

[00:29:15] Speaker 01:
The Wildgrass Court summarized what the Supreme Court said in the New Orleans case.

[00:29:20] Speaker 01:
The Supreme Court has noted the risk of disruption in cases involving procedural challenges to whether a state agency misapplied its lawful authority.

[00:29:30] Speaker 01:
And that's what we have here.

[00:29:31] Speaker 01:
The United States is challenging New Mexico Environment Department's exercise of its lawful authority.

[00:29:38] Speaker 01:
It's a state law issue.

[00:29:39] Speaker 01:
It's a state law question.

[00:29:41] Speaker 01:
There will be an impression, a first impression before the state courts.

[00:29:44] Speaker 01:
And so we do think that ascension was warranted in this case.

[00:29:48] Speaker 01:
And if there are no further questions, I will sit down.

[00:29:53] Speaker 00:
Thank you, counsel.

[00:29:55] Speaker 01:
Thank you.

[00:30:06] Speaker 04:
First, if I may, there is a presumption against exclusive jurisdiction.

[00:30:10] Speaker 04:
That's the holding of the Supreme Court in the Mims case we cite in our brief.

[00:30:14] Speaker 04:
And it's a big stretch to say that procedural requirements includes subject matter jurisdiction.

[00:30:19] Speaker 04:
That's contrary to the statute.

[00:30:21] Speaker 04:
That's contrary to this court's decision in US v. New Mexico.

[00:30:24] Speaker 04:
And it's contrary to the history of the procedural rights requirements in these statutes.

[00:30:30] Speaker 00:
And are you saying that if it does include subject matter jurisdiction, you lose?

[00:30:34] Speaker 04:
No, because again, that just provides state and federal courts with the concurrent jurisdiction.

[00:30:41] Speaker 04:
And unless the court has any additional questions, we would ask the court to reverse the judgment of the district court and remand.

[00:30:48] Speaker 00:
Thank you, counsel.

[00:30:49] Speaker 00:
Thank you both for your fine arguments.

[00:30:51] Speaker 00:
The case is submitted.