FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BURLINGTON NORTHERN & SANTA 

FE RAILWAY COMPANY,

Plaintiff-Appellee,

v. No. 05-16755

CHARLES VAUGHN, Chairman of the D.C. No.

Hualapai Indian Tribe, a federally  CV-04-02227-EHC

recognized Indian Tribe; WANDA OPINION EASTER, Finance Director of the

Hualapai Indian Tribe, a federally

recognized Indian Tribe,

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted

October 16, 2007—San Francisco, California

Filed December 7, 2007

Before: Arthur L. Alarcón, David R. Thompson, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

16105
COUNSEL

Susan M. Williams (argued), Sarah S. Works, Williams &

Works, P.A., Corrales, New Mexico, for the appellants. 

16108 BURLINGTON NORTHERN v. VAUGHN
Charles G. Cole (argued), Alice E. Loughran, Amber B.

Blaha, Steptoe & Johnson LLP, Washington, D.C.; Paul J.

Mooney, Jim L. Wright, Fennemore Craig, P.C., Phoenix,

Arizona, for the appellee. 

OPINION

TALLMAN, Circuit Judge: 

The Burlington Northern & Santa Fe Railway Company

(BNSF) brought suit against two officials of the Hualapai

Indian Tribe, Charles Vaughn and Wanda Easter (the tribal

officials), seeking declaratory and injunctive relief against

their efforts to enforce or collect the Hualapai Tribe’s possessory interest tax against BNSF for use of the railroad’s rightof-way through the reservation. The tribal officials filed a

motion to dismiss, which the district court denied. The tribal

officials bring this appeal. 

We address the novel jurisdictional question whether, under

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949), denial of a tribal sovereign immunity claim is appealable on an interlocutory basis as a collateral order. We hold

that it is and proceed to review the district court’s ruling on

the merits. We affirm the district court’s ruling that tribal sovereign immunity does not bar suit against Easter, who is allegedly responsible for enforcing the tax at issue in this suit, but

reverse with regard to Vaughn, the Tribe’s Chairman, who

has no alleged enforcement responsibilities to actually collect

the tax. The tribal officials also appeal the district court’s

denial of their exhaustion of tribal remedies claim. However,

they do not assert an adequate basis to permit us to exercise

jurisdiction over that claim now, and we dismiss the remainder of this interlocutory appeal.

BURLINGTON NORTHERN v. VAUGHN 16109
I

Viewed in the light most favorable to BNSF, as required on

a motion to dismiss, see Hydrick v. Hunter, 500 F.3d 978, 985

(9th Cir. 2007), the record reveals the following facts. BNSF1

operates its railroad on a congressionally granted right-of-way

through Arizona that crosses the Hualapai Indian Reservation.

BNSF owns title to the right-of-way, free of all claims by the

Tribe. 

In 1989, the Hualapai Tribal Council enacted a tax by ordinance which imposes a 7% tax on the value of certain “possessory interests” within the Reservation. At oral argument,

counsel for the Tribe asserted the tax was intended to be in the

nature of a use tax to reimburse the Tribe for the cost of

attending railway accidents or blockages since the mainline

hosts upward of eighty trains daily that pass at one point

through the heart of the tribal administrative center. In 1991,

BNSF brought suit challenging the Tribe’s authority to apply

the tax to the railroad’s right-of-way. The parties settled and

BNSF agreed to pay a lump sum to the Tribe in lieu of any

taxes, interest, and penalties that might otherwise have been

assessed against it during tax years 1990 through 2001. 

On July 24, 2002, after the settlement agreement had

expired, Wanda Easter, the Tribe’s finance director, sent tax

registration forms to BNSF. BNSF notified the Tribe that it

disputed the Tribe’s jurisdiction to tax BNSF’s operation of

the right-of-way. The parties attempted to resolve their disagreement, but were unsuccessful. 

BNSF subsequently filed a complaint in the United States

District Court for the District of Arizona seeking declaratory

and injunctive relief against the Tribe’s efforts to enforce or

collect the tax. The tribal officials responded with a motion to

dismiss, claiming that: 1) the suit is barred by tribal sovereign

1References to BNSF include BNSF and its predecessors in interest. 

16110 BURLINGTON NORTHERN v. VAUGHN
immunity, 2) BNSF failed to exhaust tribal remedies, and 3)

the tax does not violate federal law. The district court denied

the motion, holding that: 1) tribal sovereign immunity did not

bar BNSF’s claims against the tribal officials, 2) BNSF was

not required to exhaust tribal remedies because the tribal court

“plainly” lacked jurisdiction, and 3) BNSF’s allegation that

the tax is unenforceable against it was sufficient to state a

claim for relief. The tribal officials appealed.

II

A

[1] Our jurisdiction is circumscribed by 28 U.S.C. § 1291,

which provides: “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts

of the United States . . . .” A district court’s denial of a motion

to dismiss is not a final decision within the meaning of 28

U.S.C. § 1291. Credit Suisse v. U.S. Dist. Court for the Cent.

Dist. of Cal., 130 F.3d 1342, 1345-46 (9th Cir. 1997). Nonetheless, the Supreme Court has recognized an exception to the

final judgment rule for that “small class [of orders] which

finally determine claims of right separable from, and collateral to, rights asserted in the action.” Cohen, 337 U.S. at 546.

[2] We have not previously decided whether a district

court’s order denying a motion to dismiss on tribal sovereign

immunity grounds is a collateral order which may be

reviewed on an interlocutory basis. The Tribe persuasively

argues that by analogy to qualified immunity appeals under

civil rights claims, the rule should be the same when an

adverse decision is rendered denying tribal sovereign immunity as a complete defense to proceeding with the litigation.

See Mitchell v. Forsyth, 472 U.S. 511 (1985). We agree. 

[3] As commonly expressed, the collateral order doctrine

established in Cohen permits interlocutory review of an order

that “conclusively determine[s] the disputed question,

BURLINGTON NORTHERN v. VAUGHN 16111
resolve[s] an important issue completely separate from the

merits of the action, and [is] effectively unreviewable on

appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). All three factors are met in this

case. 

[4] The district court’s order “conclusively determine[d]

the disputed question,” that is, whether the tribal officials are

immune from suit, because “there will be nothing in the subsequent course of the proceedings in the district court that can

alter the court’s conclusion that the defendant[s are] not

immune.” See Mitchell, 472 U.S. at 527. 

[5] The district court’s order is also “effectively unreviewable on appeal from a final judgment.” See Coopers & Lybrand, 437 U.S. at 468. Tribal sovereign immunity is rooted in

federal common law and “is a necessary corollary to Indian

sovereignty and self-governance.” Three Affiliated Tribes of

the Ft. Berthold Reservation v. Wold Eng’g, 476 U.S. 877,

890 (1986). Indian tribes, and tribal officials acting within the

scope of their authority, are immune from lawsuits or court

process in the absence of congressional abrogation or tribal

waiver. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S.

751, 754 (1998); United States v. Yakima Tribal Court, 806

F.2d 853, 861 (9th Cir. 1986). As with absolute, qualified, and

Eleventh Amendment immunity, tribal sovereign immunity

“is an immunity from suit rather than a mere defense to liability; and . . . it is effectively lost if a case is erroneously permitted to go to trial.” See P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 143-44 (1993) (quoting

Mitchell, 472 U.S. at 526); Osage Tribal Council v. U.S.

Dep’t of Labor, 187 F.3d 1174, 1179-80 (10th Cir. 1999);

Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of

Fla., 63 F.3d 1030, 1050 (11th Cir. 1995) (“Tribal sovereign

immunity would be rendered meaningless if a suit against a

tribe asserting its immunity were allowed to proceed to

trial.”).

16112 BURLINGTON NORTHERN v. VAUGHN
[6] Finally, the district court’s order “resolve[d] an important issue completely separate from the merits of the action.”

See Coopers & Lybrand, 437 U.S. at 468. Courts have generally found that claims of immunity are separate from the merits of the underlying action. See, e.g., Mitchell, 472 U.S. at

527-28; P.R. Aqueduct & Sewer Auth., 506 U.S. at 145; Compania Mexicana de Aviacion, S.A. v. U.S. Dist. Court for the

Cent. Dist. of Cal., 859 F.2d 1354, 1358 (9th Cir. 1988);

Osage Tribal Council, 187 F.3d at 1180 (holding that whether

the Safe Drinking Water Act abrogated the tribe’s immunity

is “distinct from the underlying merits” of whether the tribe

violated the plaintiff’s whistle blower rights under the Act).

Likewise, the issue in this case, whether the tribal officials are

subject to suit under the doctrine of Ex Parte Young, is separate from the underlying merits of BNSF’s claim that the tax

ordinance cannot be enforced against its right-of-way through

the Reservation. See Verizon Md., Inc. v. Pub. Serv. Comm’n

of Md., 535 U.S. 635, 645-46 (2002) (holding that “the

inquiry into whether suit lies under Ex Parte Young does not

include an analysis of the merits of the claim”). 

BNSF argues that interlocutory review is inappropriate

because the district court did not resolve an “important issue”

completely separate from the merits of the action, but rather

applied settled precedent to determine that, under the doctrine

of Ex Parte Young, the tribal officials are not immune from

suit. BNSF cites Nixon v. Fitzgerald, 457 U.S. 731 (1982),

and In re Kemble, 776 F.2d 802 (9th Cir. 1985), for the proposition that an issue is important only if it involves a “serious

and unsettled” question of law. The “serious and unsettled”

language BNSF cites does not define when an issue is important under this Cohen factor. Rather, it is a completely separate consideration, which is not normally cited as one of the

elements of the collateral order doctrine. See 15A Charles

Alan Wright et al., Federal Practice and Procedure § 3911

(2007). 

[7] There is simply no requirement that the argument on

appeal be novel. See Schwartzman v. Valenzuela, 846 F.2d

BURLINGTON NORTHERN v. VAUGHN 16113
1209, 1210 (9th Cir. 1988) (“[T]he Supreme Court has authorized limited appellate review of a denial at the pretrial stage

of a defense of immunity. State government defendants apparently now deem it mandatory to bring these appeals from any

adverse ruling, no matter how clearly correct the trial court’s

decision.” (citations omitted) (emphasis added)). We think the

issue of tribal official immunity is analogous. The fact that the

district court applied settled law to determine whether immunity barred BNSF’s suit does not prevent interlocutory

review. 

[8] BNSF also contends that the tribal officials, by raising

factual issues regarding ripeness and standing, have created

an “evidence sufficiency” claim, which is not appealable.

BNSF is correct that denial of an immunity claim is appealable on an interlocutory basis only to the extent that it turns

on an issue of law. Johnson v. Jones, 515 U.S. 304, 313

(1995). However, the district court’s order denying the tribal

officials’ motion to dismiss on the basis of tribal immunity

did not involve a determination that genuine issues of material

fact existed for trial, as was the case in Johnson. See id.;

Armendariz v. Penman, 75 F.3d 1311, 1316-17 (9th Cir.

1996). Rather, the district court held that under Ninth Circuit

precedent BNSF’s suit could proceed because “suits against

tribal officers for prospective relief are not barred by sovereign immunity.” 

[9] This is not the type of evidence sufficiency claim that

falls outside the collateral order doctrine. Verizon Md., Inc.,

535 U.S. at 645 (“In determining whether the doctrine of Ex

Parte Young avoids [a sovereign immunity] bar to suit, a

court need only conduct a ‘straightforward inquiry into

whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” (citation omitted) (second alteration in the original));

Mitchell, 472 U.S. at 528 (“An appellate court reviewing the

denial of the defendant’s claim of immunity need not consider

the correctness of the plaintiff’s version of the facts, nor even

16114 BURLINGTON NORTHERN v. VAUGHN
determine whether the plaintiff’s allegations actually state a

claim.”). 

[10] We join the Tenth and Eleventh Circuits in holding

that denial of a claim of tribal sovereign immunity is immediately appealable under the collateral order doctrine. We therefore turn to whether the district court properly determined that

BNSF’s suit was not barred by tribal sovereign immunity. 

B

Issues of tribal sovereign immunity are reviewed de novo.

Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th

Cir. 2002). Absent congressional abrogation or explicit

waiver, sovereign immunity bars suit against an Indian tribe

in federal court. Kiowa Tribe of Okla., 523 U.S. at 754. This

immunity protects tribal officials acting within the scope of

their valid authority. Hardin v. White Mountain Apache Tribe,

779 F.2d 476, 479-80 (9th Cir. 1985). 

[11] Under the doctrine of Ex Parte Young, immunity does

not extend to officials acting pursuant to an allegedly unconstitutional statute. 209 U.S. 123, 155-56 (1908) (holding that

Eleventh Amendment immunity was not a bar to suit against

the state’s Attorney General to enjoin him from enforcing a

law that the plaintiffs alleged violated the Due Process Clause

of the Fourteenth Amendment). This doctrine has been

extended to tribal officials sued in their official capacity such

that “tribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law.” Burlington N. R.R. Co. v. Blackfeet

Tribe, 924 F.2d 899, 901 (9th Cir. 1991), overruled on other

grounds by Big Horn County Elec. Coop., Inc. v. Adams, 219

F.3d 944, 953 (9th Cir. 2000). 

[12] In determining whether Ex Parte Young is applicable

to overcome the tribal officials’ claim of immunity, the relevant inquiry is only whether BNSF has alleged an ongoing

BURLINGTON NORTHERN v. VAUGHN 16115
violation of federal law and seeks prospective relief. See Verizon Md., Inc., 535 U.S. at 645-46. Clearly it has done so.

BNSF’s complaint states that “Defendants have acted, have

threatened to act, or may act under the purported authority of

the Tribe, to the injury of BNSF and in violation of federal

law and in excess of federal limitations placed on the power

of the Defendants” by seeking to enforce an unauthorized tax

against BNSF that the Tribe lacks the jurisdiction to impose.

Compl. ¶ 5. BNSF seeks a declaration that the tax is invalid

as applied to its right-of-way and a permanent injunction prohibiting the tribal officials from enforcing the tax against it.

Compl. ¶ 1. This is clearly the type of suit that is permissible

under the doctrine of Ex Parte Young. 

The tribal officials contend that Ex Parte Young does not

apply because the officials “have taken no actions in violation

of federal law and BNSF failed to prove that tribal officials

intend to take such action.” First, as noted above, BNSF is not

required to “prove” anything; it is sufficient that the railroad

has alleged a violation of federal law. Also, the requirement

that the violation of federal law be “ongoing” does not require

BNSF to show that the tribal officials have enforced the challenged statute. See Wilbur v. Locke, 423 F.3d 1101, 1104-05,

1111 (9th Cir. 2005) (holding that Eleventh Amendment

immunity did not bar suit against state officials where “the

complaint alleged that the challenged statutes authorize the

state to enter into agreements which violate federal law”

(emphasis added)); Nat’l Audubon Soc’y, Inc. v. Davis, 307

F.3d 835, 846-47 (9th Cir. 2002) (rejecting defendants’ argument that “the Ex Parte Young exception ‘require[s] a genuine

threat of enforcement by a state official before a federal court’

can hear a party’s claims”).2

2Like the defendants in National Audubon Society, the tribal officials

here improperly seek to engraft Article III standing and prudential ripeness

considerations onto the Ex Parte Young analysis. Because these arguments

were not properly raised on appeal or before the district court, we do not

address them here. 

16116 BURLINGTON NORTHERN v. VAUGHN
[13] Although enforcement need not be imminent, the

named officials must have “the requisite enforcement connection to” the challenged law for the Ex Parte Young exception

to apply. See Nat’l Audubon Soc’y, Inc., 307 F.3d at 847. We

recognize the long history of efforts by the Tribe to impose

and collect taxes on the railroad that resulted in a previous

settlement. Easter is allegedly responsible for administering

and collecting the challenged tax, and has already transmitted

tax registration forms to BNSF, the first step in seeking to

impose and collect more taxes. Because BNSF has alleged

that Easter has “direct authority over and principal responsibility for enforcing” the tax, the Ex Parte Young exception

applies and tribal immunity does not bar suit against her. See

id. at 847. Charles Vaughn, the Tribal Chairman, is responsible for exercising executive authority over the Tribe. BNSF

has not alleged that Vaughn is in any way responsible for

enforcing the tax. Therefore the Ex Parte Young exception

does not apply to Vaughn and suit against him is barred by

tribal sovereign immunity. See id.

[14] We therefore affirm the district court’s denial of the

motion to dismiss with regard to Easter. We reverse with

regard to the court’s ruling against Vaughn; his motion to dismiss should have been granted.

III

The exception to the final judgment rule for collateral

orders does not give a court jurisdiction over every claim or

defense addressed by the district court’s order. Instead, we

must be able to exercise jurisdiction over each issue independently. See Swint v. Chambers County Comm’n, 514 U.S. 35,

49 (1995). The tribal officials argue that we should exercise

pendent appellate jurisdiction to review whether the district

court properly denied their motion to dismiss for failure to

exhaust tribal remedies.3

3We do not determine whether exhaustion of tribal remedies is a collateral order subject to interlocutory review under Cohen. The tribal officials

BURLINGTON NORTHERN v. VAUGHN 16117
[15] A court may exercise pendent appellate jurisdiction

over rulings that do not independently qualify for interlocutory review only if the rulings are inextricably intertwined

with, or necessary to ensure meaningful review of, decisions

that are properly before the court on interlocutory appeal.

Swint, 514 U.S. at 51; Poulos v. Caesars World, Inc., 379

F.3d 654, 668 (9th Cir. 2004). These requirements are narrowly construed, setting “a very high bar” for the exercise of

pendent appellate jurisdiction. Poulos, 379 F.3d at 669. That

bar is not met here. 

First, the tribal officials’ sovereign immunity and exhaustion of tribal remedies claims are not inextricably intertwined.

A court may exercise pendent appellate jurisdiction only if it

“must decide the pendent issue in order to review the claims

properly raised on interlocutory appeal” or if “resolution of

the issue properly raised on interlocutory appeal necessarily

resolves the pendent issue.” Id. (quotation marks omitted).

Issues are not inextricably intertwined if different legal standards apply to each issue. Id. The tribal sovereign immunity

claim turns on whether BNSF has alleged a continuing violation of federal law and seeks prospective relief. The exhaustion of tribal remedies claim requires the court to analyze

whether there is a colorable claim of tribal court jurisdiction.

These issues “turn on wholly different factors,” and therefore

are not inextricably intertwined. See, e.g., id. at 670 (primary

jurisdiction and class certification issues not inextricably

intertwined); Meredith v. Oregon, 321 F.3d 807, 815 (9th Cir.

waived this argument by raising it for the first time in their reply brief. See

Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004). The tribal officials also discussed for the first time in their reply brief pendent appellate

jurisdiction as a basis for jurisdiction over the exhaustion of tribal remedies claim. However, pendent appellate jurisdiction was discussed by

BNSF in its answering brief, so that issue has been joined and we may

consider it. See In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th

Cir. 1991) (“We have discretion to review an issue not raised by appellant,

however, when it is raised in the appellee’s brief.”). 

16118 BURLINGTON NORTHERN v. VAUGHN
2003) (Younger abstention and preliminary injunction not

inextricably intertwined); Stewart v. Oklahoma, 292 F.3d

1257, 1260 (10th Cir. 2002) (Eleventh Amendment immunity

and exhaustion of administrative remedies not inextricably

intertwined). 

[16] Likewise, exercising pendent appellate jurisdiction

where the pendent claim shares only a “tangential relationship

to the decision properly before [the court] on interlocutory

appeal,” is not “necessary to ensure meaningful review” of

that decision. Poulos, 379 F.3d at 669. In Meredith v. Oregon,

the court found that review of the pendent Younger abstention

decision was necessary to provide meaningful review of the

preliminary injunction decision because “if the district court

is required to abstain under Younger and dismiss the suit, then

it has no authority to rule on a party’s motion for a preliminary injunction.” 321 F.3d at 816. Similar considerations are

not present in this case. Determination of whether the tribal

court has jurisdiction, and thus exhaustion is required, is not

necessary to provide meaningful review of the tribal officials’

claim that they are completely immune from suit in federal

court. Because this is not one of the rare instances in which

pendent appellate jurisdiction is appropriate, the remaining

claims on appeal are dismissed for lack of jurisdiction.4

IV

Under the collateral order doctrine, we have jurisdiction

over the denial of the tribal officials’ motion to dismiss on

4The district court’s holding that exhaustion of tribal remedies was not

required was based on its finding that the tribal officials could not make

a colorable claim of tribal court jurisdiction. The tribal officials argue that

the district court erred in so finding. Because we do not have interlocutory

jurisdiction over the issue of exhaustion of tribal remedies at this stage of

the case, we do not yet have jurisdiction to review the district court’s finding regarding the scope of the tribal court’s jurisdiction and we do not

decide now whether this finding was correct. That issue may be considered if necessary on appeal from any final judgment below. 

BURLINGTON NORTHERN v. VAUGHN 16119
tribal sovereign immunity grounds. Reviewing the claim on

the merits, the Ex Parte Young exception applies to Easter,

who is allegedly responsible for enforcing the challenged tax,

and tribal sovereign immunity is not a bar to suit against her.

We therefore affirm the district court’s denial of the motion

to dismiss as to Easter. The exception does not apply, however, to the suit against Chairman Vaughn because BNSF has

not alleged that he is connected to enforcement of the tax, and

we reverse that part of the district court’s order. Finally, we

elect not to exercise pendent appellate jurisdiction over the

exhaustion of tribal remedies claim as it is not inextricably

intertwined with, or necessary to ensure meaningful review on

interlocutory appeal, of the tribal sovereign immunity claim.

The remainder of the appeal is therefore dismissed. Each

party shall bear its own costs on appeal. 

AFFIRMED in part; REVERSED in part; DISMISSED in

part. 

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