### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk August 14, 1998 

### TO: ALL RECIPIENTS OF THE OPINION 

### RE: 96-3250, 96-3345, ANR Pipeline Co. v. Lafaver Filed on July 21, 1998 The slip opinion filed on July 21, 1998, contains four minor clerical errors. Please note the following corrections: 1. On page one, “MARY I. CARLSON, Edwards County Commissioner” should be corrected to read “MARY I. CARLSON, Edwards County Treasurer”. 2. On page two, “MARILYN K. BROWN, Jackson County” should be corrected to read “MARILYN K. BROWN, Jackson County Treasurer”. 3. On page three, the name of counsel appearing for the appellants should be corrected to read “William E. Waters”. 4. On page three, Richard D. Greene, appearing for the appellees, is a member of the firm Morris, Laing, Evans, Brock & Kennedy. A corrected copy of pages one, two and three of the opinion are attached for your convenience. Sincerely, Patrick Fisher, Clerk

Keith Nelson Deputy Clerk encl.

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 21 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANR PIPELINE COMPANY and COLORADO INTERSTATE GAS COMPANY, Plaintiffs - Appellees, v. JOHN D. LAFAVER, Secretary of the Kansas Department of Revenue, in his official capacity; KANSAS DEPARTMENT OF REVENUE; MARK S. BECK, Director of the Division of Property Valuatio n of the Kansas Department of Revenue, in his officia l capacity; DIVISION OF PROPERTY VALUATION OF THE KANSAS DEPARTMENT OF REVENUE; and their respective predecessors and successors in office, Defendants - Cross-claim defendants - Appellants,
and
BROWN COUNTY BOARD OF COUNTY COMMISSIONERS; JUDY GRATHWOHL, Brown County Treasurer; CLARK COUNTY BOARD OF COUNTY COMMISSIONERS; COLEEN Z. BROWN, Clark County Treasurer; COMANCHE COUNTY BOARD OF COUNTY COMMISSIONERS; VELMA BASNETT, Comanche County Treasurer; DICKINSON COUNTY BOARD OF COUNTY COMMISSIONERS; LOUISE HABACKER, Dickinson County Treasurer; EDWARDS COUNTY BOARD OF COUNTY COMMISSIONERS; MARY I. CARLSON, Edwards County Treasurer; FINNEY COUNTY BOARD OF COUNTY COMMISSIONERS; Nos. 96-3250 & 96-3345- 2 -

RAYLENE NELSON, Finney County Treasurer; FORD COUNTY BOARD OF COUNTY COMMISSIONERS; DOROTHY HUNTER, Ford County Treasurer; GEARY COUNTY BOARD OF COUNTY COMMISSIONERS; KATHY TREMONT, Geary County Treasurer; GRANT COUNTY BOARD OF COUNTY COMMISSIONERS; RITA GEE, Grant County Treasurer; GREELEY COUNTY BOARD OF COUNTY COMMISSIONERS; MARY D. GENTRY, Greeley County Treasurer; HAMILTON COUNTY BOARD OF COUNTY COMMISSIONERS; CHRIS SQUIRE, Hamilton County Treasurer; HASKELL COUNTY BOARD OF COUNTY COMMISSIONERS; NANCY WEEKS, Haskell County Treasurer; JACKSON COUNTY BOARD OF COUNTY COMMISSIONERS; MARILYN K. BROWN, Jackson County Treasurer; KEARNEYCOUNTY BOARD OF COUNTY COMMISSIONERS; HOLLY LASHMET, Kearney County Treasurer; KIOWA COUNTY BOARD OF COUNTY COMMISSIONERS; ELSIE HARALDSON, Kiowa County Treasurer; MCPHERSON COUNTY BOARD OF COUNTY COMMISSIONERS; BRENDA BECKER, McPherson County Treasurer; MEADE COUNTY BOARD OF COUNTY COMMISSIONERS; WYNEMA DYE, Meade County Treasurer; MORTON COUNTY BOARD OF COUNTY COMMISSIONERS; LOIS HALL, Morton County Treasurer; NEMAHA COUNTY BOARD OF COUNTY COMMISSIONERS; ROSE M. WILHELM, Nemaha County Treasurer; POTTAWATOMIE COUNTY BOARD OF COUNTY COMMISSIONERS; LINDA HORGAN, Pottawatomie County Treasurer; PRATT COUNTY BOARD OF COUNTY COMMISSIONERS; DONNA SHELITE, Pratt County Treasurer; RENO COUNTY BOARD OF COUNTY COMMISSIONERS; LARRY R. TUCKER, Reno County Treasurer; RICE COUNTY BOARD OF COUNTY COMMISSIONERS; LILA BLACKBURN,- 3 -

Rice County Treasurer; RILEY COUNTY BOARD OF COUNTY COMMISSIONERS; R. EILEEN KING, Riley County Treasurer; SALINE COUNTY BOARD OF COUNTY COMMISSIONERS; KEITH LILLY, Saline County Treasurer; SEWARD COUNTY BOARD OF COUNTY COMMISSIONERS; JOE NEESE, Seward County Treasurer; STAFFORD COUNTY BOARD OF COUNTY COMMISSIONERS; LYNDA L. MCALLISTER, Stafford County Treasurer; STANTON COUNTY BOARD OF COUNTY COMMISSIONERS; PHYLLIS KISTLER, Stanton County Treasurer; STEVENS COUNTY BOARD OF COUNTY COMMISSIONERS; BELVA HICKEY, Stevens County Treasurer; WABAUNSEE COUNTY BOARD OF COMMISSIONERS; ELLA MAE KRAUS, Wabaunsee County Treasurer; and all their respective predecessors and successors in of fice, Defendants - Cross-Claim plaintiffs.

Appeal from the United States District Court

for the District of Kansas (D.C. No. 96-1089-JTM)

William E. Waters, Kansas Department of Revenue, To peka, Kansas, for defendants - cross-claim defendants - appellants. Richard D. Greene, Morris, Laing, Evans, Brock & Ke nnedy, Wichita, Kansas, (Rebecca H. Noecker and Karen L. Pauley, Colorado I nterstate Gas Co., Colorado Springs, Colorado, on brief), for plaintiffs - appe llees.

Before ANDERSON , EBEL and KELLY , Circuit Judges.- 4 -

EBEL , Circuit Judge.

This appeal involves the efforts of two natural gas pipelines, in the face of burgeoning economic competition in the deregulated energy industry, to deal with what they regard as the unequal property tax systemin Kansas vis-a-vis the pipelines’ traditional competitors, railroad compan ies, as well as the pipelines’ claims of unfair judicial process in the state courts of Kansas. We must dismiss this appeal, vacate the district court’s judgment, and direct the district court to dismiss all claims in this case against both the st ate agency defendants and the state official defendants. The Eleventh Amendment stands as a bar to federal jurisdiction over all of these claims, and the plai ntiffs’ suit is not saved by the Ex parte Young doctrine.

Background These two appeals arise out of a single district co urt order denying a motion to dismiss under Fed. R. Civ. P. 12(b)(1) fo r lack of subject-matter jurisdiction, filed by the state agency defendants and the state official defendants (collectively referred to as “state defendants”) tw o weeks after the plaintiffs filed1 A second group of defendants, involving most of Kan sas’ county

commissioners and county treasurers [hereinafter th e “county defendants”], were parties below but they have not filed their own int erlocutory appeal in this case. As a result, this opinion is limited solely to the question of jurisdiction over the state defendants. Following oral argument, the plaintiffs-appellees f iled an uncontested motion with this court to dismiss the state agency defendants from this case. In light of our resolution of this appeal, it is appar ent that the plaintiffs-appellees cannot maintain this federal action against the state agency defendants. Accordingly, we grant the plaintiffs-appellees’ mot ion to dismiss the Kansas Department of Revenue and the Kansas Division of Pr operty Valuation as defendants. Based on this ruling, then, the only defendants sti ll germane to this appeal are the two state official defendants: the secreta ry of the Department of Revenue and the director of the Division of Property Valuat ion.

2 As a result, we direct the Clerk to consolidate the se two appeals. - 5 - this suit. 1 The state defendants filed one appeal, No. 96-325 0, as an “appeal by right” based on the district court’s denial of the state defendants’ claim of sovereign immunity under the Eleventh Amendment. S ubsequently, the state defendants also filed a separate motion seeking permission to file a second interlocutory appeal challenging that portion of th e court’s decision involving the Tax Injunction Act and the Rooker/Feldmandoctrine. The motion was granted, and this second appeal was denominated No. 96-3345. Despite this procedural division of the issues between the two separate app eals, we believe the interests of justice would be best served by consolidating bo th appeals and disposing of this case in a single opinion. 2- 6 -

1. The 4-R Act. The seeds of this property tax dispute were plantedin the Railroad Revitalization and Regulatory Reform Act of 1976 (“ 4-R Act”), Pub. L. 94-210, 90 Stat. 31 (codified as amended at 49 U.S.C. § 115 01 (1994)). Under this legislation, Congress prohibited state and local taxing agencies from imposing discriminatory taxes on railroads. See 49 U.S.C. § 11501(b). The legislation generated vast amounts of litigation in which railr oads alleged that various taxing schemes by states and local governments violated th e 4-R Act. See, e.g. , Burlington N. R.R. Co. v. Huddleston , 94 F.3d 1413 (10th Cir. 1996) (the most recent Tenth Circuit case on 4-R Act). One of thos e 4-R Act lawsuits involved a challenge by railroads operating in Kansas against the state’s taxation scheme for the railroads’ personal property. On August 11, 19 89, that litigation was resolved with a consent decree that required the Kansas Divi sion of Property Valuation to exempt 80% of the railroads’ personal property fromthe tax roll, and then to levy a 30% tax assessment on the remainder of the railro ad’s real and personal property. Seeing this dramatic tax break for their competitor s, several natural gas pipeline companies requested similar treatment fromthe Kansas Division of Property Valuation, but the state refused. The pip eline companies then went to court. From the outset of the litigation underlyin g these appeals, the pipeline- 7 -

companies have argued that they are similarly situated vis-a-vis the railroad companies, i.e., that both are public utilities und er Kansas law. See Kan. Stat. Ann. §§ 79-5a01(a)(1) & (a) (4) (1989). The pipeli nes argue that they have an equal protection right to the same tax breaks provi ded to the railroads. See U.S. Const., XIV amend., § 1. Key to the pipelines’ equal protection claim is the ir concomitant allegation that they were denied procedural due process by the tax appeal proceedings in Kansas at both the administrative and judicial leve l. For this reason, the sequence of events in the underlying litigation is important

.

2. The pipelines’ state-court litigation. After the August 11, 1989, consent decree exempting much of the railroads’ Kansas personal property from taxation, the pipelin es filed suit in Shawnee County District Court claiming their 1989 tax asses sment by the Kansas Division of Property Valuation violated state and federal gu arantees of equal protection. In an unreported decision, the state district courtdismissed the suit for lack of subject-matter jurisdiction because the pipelines h ad failed to file an appeal of the assessment before the Kansas Board of Tax Appeals ( “BOTA”). In 1993, the Kansas Court of Appeals reversed the district court ’s decision and remanded the case for consideration of the pipelines’ equal prot ection arguments. See Colorado- 8 -

Interstate Gas Co. v. Beshears , 860 P.2d 56, 61-62 (Kan. Ct. App. 1993) [hereinafter “CIG I ”] (holding that the failure to exhaust administrat ive remedies was no bar to jurisdiction when no actual administr ative remedies were available). During the pendency of this first case, the pipelin es filed appeals of their 1990 and 1991 tax assessments with BOTA, again clai ming that the lack of favorable exemptions for themselves, vis-a-vis the railroads, violated the pipelines’ rights to equal protection. The 1990 an d 1991 appeals were submitted to BOTA on a stipulated record, and the Board rejec ted the challenges. The pipelines appealed that decision to the Kansas Supr eme Court, which affirmed the BOTA decision. See In re Appeal of ANR Pipeline Co. , 866 P.2d 1060 (Kan.) [hereinafter “CIG II (ANR Pipeline) ”], cert. denied , 513 U.S. 917 (1994). The Kansas Supreme Court held that any disparate treatm ent between the pipelines and the railroads – including the 80% exemption of personal property – was mandated by the 4-R Act. See id. at 1067-68. The court also held that Kansas’ constitutional guarantees of equal protection and u niform taxation were preempted by the 4-R Act. See id. at 1066-68. Just three days after the Kansas Supreme Court file d its decision in CIG II (ANR Pipeline) , the Supreme Court of the United States filed a de cision in an unrelated case dealing with a similar issue of stat e property tax exemptions for railroads under the 4-R Act. See Department of Revenue v. ACF Indus., Inc. , 510- 9 -

U.S. 332 (1994). In ACF Industries , the state of Oregon had denied a request for property tax exemptions filed by companies that lea se railcars to railroads and interstate shippers. Id. at 335-36. The railcar companies argued that the failure of the state to extend its partial exemption of tan gible property to the railcar companies – while the state provided partial exempt ions to certain agricultural and other businesses – was a violation of the anti- discrimination provisions of the
4-R Act. See id. The Supreme Court disagreed, holding that the 4-RAct does not limit a state’s discretion to exempt non-railroad p roperty, but not railroad property, from ad valorem taxes of general applicat ion. See id. at 347-48. In Kansas, the pipelines interpreted the Supreme Co urt’s decision in ACF Industries as a frontal assault on the rationale of the earli er Kansas Supreme Court decision in CIG II (ANR Pipeline) . Consequently, the pipelines filed a motion for rehearing in CIG II (ANR Pipeline) , arguing that the Supreme Court’s decision in ACF Industries seriously undermined the Kansas court’s justificat ion under the 4-R Act. The Kansas Supreme Court summar ily denied the petition for rehearing without comment. The pipelines then file d a petition for a writ of certiorari, arguing in part that the Kansas decisio n in CIG II (ANR Pipeline) was inconsistent with the Supreme Court’s decision in A CF Industries . The Supreme Court denied the certiorari petition without comment. See ANR Pipeline Co. v. Director of Property Valuation , 513 U.S. 917 (1994).3 From the text of the BOTA ruling, it appears that t he Board did not

address the constitutional claims raised by the pip elines. The Board said that in CIG II (ANR Pipeline) , “[t]he Kansas Supreme Court ruled that the 4-R Ac t only applies to railroads. . . . The taxpayer is not a railroad and thus, is not entitled to the similar tax treatment provided by the 4-R Act.” The Board apparently did not address the pipelines’ claim that whether or not th e pipelines met the definition of a railroad, they were similarly situated with the r ailroads as public utilities, and as a consequence, they were entitled to equal treatmen t. - 10 - During the pendency of this CIG II (ANR Pipeline) litigation, the pipelines filed new appeals of their 1992 and 1993 tax assess ments with BOTA. This time, in addition to their equal protection claims, the p ipelines argued that the Kansas Supreme Court’s decision in CIG II (ANR Pipeline) had been effectively overruled by the U.S. Supreme Court’s decision in A CF Industries . The 1992 appeal was submitted on the basis of stipulated fac ts, but there was no stipulation with respect to the 1993 appeal. BOTA dismissed bo th appeals without taking any evidence on the question of the disparate treat ment between the railroads and the pipelines. BOTA ruled that its decision must b e controlled by the Kansas Supreme Court’s ruling in CIG II (ANR Pipeline)

. 3 The pipelines appealed again to the Kansas Supreme Court, this time on the basis of their 1992 and 1993 tax appeals, asking th e court to instruct BOTA that CIG II (ANR Pipeline) was no longer controlling law. Instead, the Kansa s Supreme Court ruled on the pipelines’ constitutiona l claims. See In re Appeals of Colorado Interstate Gas Co. , 903 P.2d 154 (Kan. 1995) [hereinafter “CIG III ”].- 11 -

The Kansas Supreme Court held that the disparate tr eatment between the railroads and the pipelines was rational because it arose fro m the negotiated settlement of the initial 4-R Act litigation brought by the railr oads:

While the granting of the 80% personal property tax exemption may have been based upon the belief t hat the 4-R Act required it, a belief that may be false in light of the United States Supreme Court’s decisionin ACF Industries , the settlement represents a cost-benefit analysis of continued litigation. . . . We are not prepared to state that the granting of the 80% personal property tax exemption to the name d railroads in protracted federal litigation, as partof a negotiated settlement discriminated against CIG and ANR. Id. at 158-59. On the basis of this legal conclusion, the Kansas Supreme Court dismissed the 1992 tax appeal. See id. at 159. The court, however, remanded the 1993 appeal for factual findings. See id. at 160. The Kansas court held that it was error to decide the 1993 tax appeal without an evidentiary hearing. See id.

3. The pipelines’ federal court litigation. Rather than file a petition for a writ of certiorar i on this latest Kansas Supreme Court decision, the pipelines filed the ins tant action in federal district court. The complaint asserted federal court jurisd iction under 28 U.S.C. § 1331 (federal-question jurisdiction) and 28 U.S.C. § 134 3 (civil-rights jurisdiction) and alleged that the Tax Injunction Act, 28 U.S.C. § 13 41, was no bar to the federal4 The pipelines sought and received permission to ame nd their original

complaint, but the additional claims in the amended complaint were not before the district court when it considered the state defendants’ motion to dismiss, and as a consequence, those claims are not before us in this appeal.

5 The pipelines also asserted state-law claims for vi olations of the Kansas Constitution’s equal protection and uniform taxatio n clauses, as well as a claim under Kansas common law for unjust enrichment. How ever, following oral arguments, the pipelines submitted a motion in this court to dismiss these statelaw claims against the state defendants, which we g rant. - 12 - court’s jurisdiction. 4 The pipelines’ complaint involved the state’s pro perty tax valuations of their personal property from 1990 to 1993, alleging that those valuations violated the pipelines’ federal equal pr otection and due process rights under the Fourteenth Amendment. 5 The pipelines’ complaint requested money damages against the county defendants and declarato ry and equitable relief against the state defendants. The declaratory reli ef sought was a declaration that “Defendants have and continue to wrongfully value, assess, tax, and retain excessive taxes paid by [the pipelines] that are su bstantially different from those valued, assessed, taxed, collected and retained fro m similarly situated taxpayers, without a rationally based legitimate state interes t, in violation of the Equal Protection Clause of the United States.” This decl aratory judgment request also asked the district court to take the following acti on: “to declare that [the Division of Property Valuation] should recertify to Counties for subject and future tax6 The pipelines’ request for a “declaration” that the state “should recertify”

the pipelines’ tax assessment might be more accurat ely characterized as a request for an “injunction.” However, the pipelines adaman tly insist that they have not asked for injunctive relief; they insist that theircomplaint against the state defendants seeks only declaratory relief. (See Appellees Letter of Mar. 24, 1997 to Tenth Circuit Court of Appeals (responding to th e appellant’s submission of supplemental authority).) Nevertheless, the charac terization of this form of relief as “declaratory” or “injunctive” is not dispositive to our resolution here, and thus, we need not wade into that muddy water. - 13 - years lawful values which comply with state and fed eral constitutions.” 6 In response to this complaint, the county defendant s filed cross-claim complaints against the state defendants, which the state defendants answered, and all the defendants filed various motions under Fed. R. Civ. P. 12(b)(1) asking the district court to dismiss the plaintiff’s suit. Th e district court dismissed the county defendants’ motions to dismiss in the same o rder on appeal here, but because the county defendants are not parties to th is appeal, we decline to consider the district court’s decision on those mot ions. Finally, as the defendants’ motions were pending infederal district court, the last installment of the Kansas state-court proc eedings went forward in the Shawnee County District Court, where the state court took up the remand it had received with respect to the 1989 tax assessment inCIG I . The state filed a motion for summary judgment, arguing that the const itutional claims raised by the pipelines had been decided by the Kansas Supreme Co urt in CIG III . The pipelines, on the other hand, filed a motion for a stay pending the outcome in- 14 -

federal district court on their federal-court claim s, including their claim that the Kansas courts had failed to provide due process on the pipelines’ equal protection claims. Without conducting a hearing on either mot ion, the state district court apparently issued an order dismissing the motion fo r a stay and granting summary judgment to the state on the basis of the Kansas Supreme Court decision in
CIG III . In a second appeal to the Kansas Court of Appeal s, the appellate court again reversed the district court, although we have no indication in the record before us of the basis of that unpublished decisionor its instructions to the lower
court. See Colorado Interstate Gas Co. v. Beshears , 951 P.2d 1324 (Kan Ct. App. 1998) (table disposition).

4. The federal district court’s ruling. In the face of this complex procedural history, the federal district court below issued the Memorandum and Order that is on ap peal here: ANR Pipeline
Co v. LaFaver , No. 96-1089-JTM, 1996 WL 363047 (D. Kan. June 26, 1996) [hereinafter “CIG IV ”]. In denying all the various motions to dismiss, the district court held that its jurisdiction was not blocked bythe Tax Injunction Act because the Kansas authorities had failed to provide a “pla in, speedy, and efficient remedy” in the Kansas courts: “The pipelines consi stently attempted to protect their rights under state law, yet in the end their constitutional claims were- 15 -

essentially terminated without any consideration.” Id. at *2. The district court said the defendants could not rely on the existence of Kansas’ tax appeal procedures as proof that the state provided a plain , speedy, and efficient remedy “if the procedures are ignored in fact.” See id. The district court also ruled that the pipelines’ c laims in this case did not violate the Rooker/Feldmandoctrine barring lower federal court review of state court decisions because the pipelines had narrowly focused their suit away from any federal court review of the Kansas Supreme Court’s decisions in CIG II (ANR Pipeline) and CIG III . See CIG IV , 1996 WL 363047, at *3. The district court held that the claims in the separate federal lawsui t were an original action – rather than a collateral attack – “premised on the failure of the [Kansas] court to decide the constitutional issues raised by the pipelines.” Id. Finally, on the state defendants’ claim of Eleventh Amendment immunity, the district court ruled that to the extent the pip elines sought money damages, their suit was actually against the county defendan ts, which are not arms of the state, and thus was not blocked by the Eleventh Ame ndment. See id. at *3. The district court held that the remaining claims again st the state defendants came within the Ex parte Young rule under the Eleventh Amendment because these claims sought only prospective relief for a violati on of “the constitutional guarantees of Kansas and the United States.” Id. at *2.7 In its Memorandum Order denying the motion for reco nsideration, the

district court granted the state defendants’ separate request for interlocutory certification of the appeal in No. 96-3345 under 28 U.S.C. § 1292(b). - 16 - Following the denial of their motion for reconsider ation, the state defendants took the instant appeals. Despite the i nterlocutory nature of this case, we have appellate jurisdiction over the district co urt’s ruling on the Eleventh Amendment issue under the collateral order doctrine of Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139 (1995). See also Garramone
v. Romo , 94 F.3d 1446, 1452 (10th Cir. 1996) (allowing an interlocutory appeal from the denial of claim of Eleventh Amendment immu nity under the collateral order doctrine). We also have appellate jurisdicti on over the Rooker/Feldmanand Tax Injunction Act issues under the certification p rocedures for interlocutory appeals based on 28 U.S.C. § 1292(b) and Fed. R. Ci v. P. 56(c). 7We review de novo a district court’s consideration of subject-matter jurisdiction in the context of a Rule 12(b)(1) motion to dismiss, providing ple nary review to issues under the Eleventh Amendment. See SK Finance SA v. La Plata County, Bd. of County
Comm’rs , 126 F.3d 1272, 1275 (10th Cir. 1997) (dismissal o n Rule 12(b)(1) standard); Powder River Basin Resource Council v. B abbitt , 54 F.3d 1477, 1483 (10th Cir. 1995) (dismissal on Eleventh Amendment/E x parte Young doctrine).8 We note that federal courts should avoid reaching t he merits of a

constitutional issue when the case may be decided o n statutory grounds. However, in this case, we turn first to the constitutional issue of state sovereign immunity because it presents a controlling jurisdic tional question that is antecedent to the other two issues raised on appeal , i.e., the Tax Injunction Act and the Rooker/Feldmandoctrine. First, the statutory limitations of the Tax Injunct ion Act are not jurisdictional; rather, they define the scope of re medies a federal court may grant in a suit challenging taxes levied under state law. See 28 U.S.C. § 1341. Second, although the Rooker/Feldmandoctrine does indeed involve a jurisdictional issu e, see Facio v. Jones , 929 F.2d 541, 543 (1991), in this case, the appel lants’ allegations of a due process violation are sufficie nt to avoid dismissal under the Rooker/Feldmandoctrine. The appellants have made clear that the ir complaint in this case does not contest the finality of the Kans as Supreme Court’s decision in CIG III , but rather, they complain about the procedural fa irness of Kansas’ review of claims in subsequent proceedings. - 17 - I. State sovereign immunity. 8 Two landmark Supreme Court cases on the scope of a state’s sovereign immunity under the Eleventh Amendment ultimately co ntrol the outcome of this
case. See Idaho v. Coeur d’Alene Tribe , 117 S. Ct. 2028 (1997); Seminole Tribe v. Florida , 116 S. Ct. 1114 (1996). However, a portion of th e pipelines’ claims against the state defendants may be disposed of by relying on the Eleventh Amendment case law predating Coeur d’Alene Tribe and Seminole Tribe , and consequently we turn to those matters first.

A. The Eleventh Amendment. The text of the Eleventh Amendment was proposed andquickly adopted by- 18 -

the states soon after the Supreme Court handed downits decision in Chisolm v. Georgia , 2 U.S. (2 Dall.) 419 (1793), which interpreted th e diversity jurisdiction clauses in section 2 of Article III as abrogating s overeign immunity for the states.
See Seminole Tribe , 116 S. Ct. at 1148-49 (Souter, J., dissenting) ( reviewing the history of the passage of the Eleventh Amendment). In an obvious reference to Article III’s use of the phrase “The judicial Powerof the United States,” the Eleventh Amendment reads as follows,

The Judicial power of the United States shall not be construed to extend to any suit in law or equity , commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const., XI amend. Although the language of th e text does not require it, the Supreme Court consistently has interpreted the Elev enth Amendment as barring not only suits against a state by citizens of anoth er state, but also suits against a state by that state’s own citizens. See Hans v. Louisiana , 134 U.S. 1, 13-15 (1890); Edelman v. Jordan , 415 U.S. 651, 663 (1974). As the Court has noted , the Eleventh Amendment stands “not so much for whatit says, but for the presupposition . . . which it confirms.” Blatchfor d v. Native Village of Noatak & Circle Village , 501 U.S. 775, 779 (1991). That “presupposition” is the doctrine of sovereign immunity, i.e., that “‘it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without it s consent .’” Hans , 134 U.S. at9 It is on the basis of this holding in Corythat we grant the plaintiffs’

motion to dismiss the claims against the state agen cies. - 19 - 13 (emphasis in original) (quoting The Federalist , No. 81 (A. Hamilton)). Applying this notion of sovereign immunity, the Cou rt has held that a citizen’s suit against a state agency is barred by the Eleventh Amendment just as surely as if the suit had named the state itself. See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100 (1984). Furthermore, it does n ot matter what form of relief a citizen might request in a suit ag ainst a state agency; even a suit solely for prospective injunctive relief when it is brought against a state agency qua state agency is barred by the amendment. See Cory v. White , 457 U.S. 85, 90 (1982). 9 Finally, when a suit seeks money damages against an official of a state agency, suing that official in his or her official capacity, then the “real party in interest” is the state, and the suit is barred by t he Eleventh Amendment. See Edelman , 415 U.S. at 663. There are two narrow exceptions to the doctrine o f sovereign immunity as it is enshrined in the Eleventh Amendment: 1) A state may waive its Eleventh Amendment immunity by consenting to be sued, but on ly in the clearest and most unmistakable terms, and 2) Congress may abrogate th e states’ Eleventh Amendment immunity, but again, only by using the cl earest and most unmistakable terms, and only when Congress is exerc ising a power granted to it- 20 -

by a constitutional amendment post-dating the Eleve nth Amendment, i.e., principally section 5 of the Fourteenth Amendment. See Aaron v. Kansas , 115 F.3d 813, 814 (10th Cir. 1997) (discussing the impa ct of Seminole Tribe on case law under the Eleventh Amendment).

B. The Ex parte Young “exception.”
1. The traditional view. A third route for a party to obtain relief against a state agency in federal court is the so-called Ex parte Young “exception” to the Eleventh Amendment, although in nominal form the rule is not an “except ion” because the citizen’s suit is not against the state, but rather it is a suit a gainst a state official. In such a suit, when a party seeks only prospective equitable relief – as opposed to any form of money damages or other legal relief – then the Eleventh Amendment generally does not stand as a bar to the exercise o f the judicial power of the United States. See Ex parte Young , 209 U.S. 123, 158-159 (1908); see also Coeur d’Alene Tribe , 117 S. Ct. at 2043 (O’Connor, J., concurring) (“T he Young doctrine recognizes that if a state official violat es federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity.”) Under the Ex parte Young legal fiction, when an official of a state agency10 This interpretation of the Ex parte Young doctrine sheds light on why an

official-capacity suit against a state official is not always blocked by the Eleventh Amendment. See Kentucky v. Graham , 473 U.S. 159, 167 n.14 (1985). It is certainly true that the Court declared in rather emphatic language in Grahamthat an official-capacity suit “is, in all respects othe r than name, to be treated as a suit against the [official’s] entity.” Id. at 166. This statement, however, cannot be interpreted to mean that an official-capacity suit against a state agency official always should be treated as a suit against the stat e. As the Court quickly added in Graham , “official-capacity actions for prospective relief [against state officials] are not treated as actions against the State.” Id. at 167 n.14; see also Will v. Michigan Dep’t of State Police , 491 U.S. 58, 71 n.10 (1989). - 21 - is sued in his official capacity for prospective eq uitable relief, he is generally not regarded as “the state” for purposes of the Eleventh Amendment and the case may proceed in federal court. 10 See Green v. Mansour , 474 U.S. 64, 68 (1985) (reading Ex parte Young to hold “that the Eleventh Amendment does not prev ent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law”). In one of our own rece nt Eleventh Amendment cases, we explained the traditional view of the Ex parte Y oung doctrine:

[W]hen a suit names a state official as the defenda nt, the Eleventh Amendment still bars the action if “the st ate is the real, substantial party in interest.” Whether the state is the real party in interest turns on the relief s ought by the plaintiffs. Suits that seek prospective relief are deemed to be suits against the official, while suit s that seek retroactive relief are deemed to be suits agai nst the state. Powder River Basin , 54 F.3d at 1483 (quoting Ford Motor Co. v. Department of Treasury , 323 U.S. 459, 464 (1945)).11 On the basis of Pennhurst , we grant the plaintiffs’ to dismiss their state

law claims. - 22 - Of course, because of the important interests of fe deralism and state sovereignty implicated by the Ex parte Young doctrine, the rule has its limits. First, federal courts have no jurisdiction to entertain a suit that seeks to require the state official to comply with state law – only allegations of violations of federal law are sufficient to come within the Ex pa rte Young rule. See Pennhurst , 465 U.S. at 106 (“[I]t is difficult to think of a g reater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. . . . We conclude thatYoung and Edelmanare inapplicable in a suit against state officials on t he basis of state law.”). 11 Second, the doctrine will not go so far as to allow federal jurisdiction over a suit that seeks to redress past wrongs – only ongoing violat ions are covered. See Papasan v. Allain , 478 U.S. 265, 277-78 (1986) (“Young has been focused on cases in which a violation of federal law by a state officia l is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past. . . .”). Third, the doctrine does not allow a federal court to declare past state conduct unconstitutional when the only purpose for such a declaratory judgment would be its res judicata effect in a subsequent st ate-court proceeding; such a declaration would have the effect of adjudicating t he liability issues in a damages- 23 -

action against the state even though a direct feder al suit for damages would be barred by the Eleventh Amendment. See Green , 474 U.S. at 73. And fourth, although the doctrine will allow injunctive relief that might have a substantial ancillary effect on a state treasury, it does not a llow an award for monetary relief that is the practical equivalent of money damages, even if this relief is characterized as equitable. See Edelman , 415 U.S. at 668 (holding that the Ex parte Young rule will not allow an award of “equitable restitu tion” when the “practical effect [is] indistinguishable in many re spects from an award of damages” and when it is “measured in terms of a mon etary loss resulting from a past breach”). These limitations on the Ex parte Young doctrine are well-settled, and they informed the Supreme Court’s recent pronouncement that “We do not, then, question the continuing validity of the Ex parte Yo ung doctrine.” See Coeur d’Alene Tribe , 117 S. Ct. at 2034. Despite this pronouncement, the Court’s decisions in Coeur d’Alene Tribe and Seminole Tribe mark a significant narrowing of the scope of the Ex parte Young doctrine. See V-1 Oil Co. v. Utah State Dep’t of Public Safety , 131 F.3d 1415, 1421 n.2 (1997) (recognizing that Seminole Tribe limited Ex parte Young , but affirming the continued vitality of the Ex parte Young doctrine).- 24 - 2. New case law. The first shift arose in Seminole Tribe , a case that involved a federal suit by an Indian tribe seeking to force the state of Fl orida to comply with provisions of the Indian Gaming Regulatory Act (“IGRA”). Semi nole Tribe , 116 S. Ct. at 1121. In addition to naming the state itself as a party, the suit also named Florida’s Governor Lawton Chiles and sought to invo ke the Ex parte Young rule allowing for federal jurisdiction over claims for p rospective injunctive relief against state officials. See id. at 1132. The Court, however, held that the Ex parte Young fiction should not be invoked where Congress “has prescribed a detailed remedial scheme for the enforcement agains t a State of a statutorily created right. . . .” Id. The Court ruled that the federal courts are not f ree to imply the wide-ranging, judge-made remedial doctrin e of Ex parte Young when Congress has seen fit to craft a significantly narr ower statutory remedy. See id. at 1133 (“[T]he fact that Congress chose to impose upo n the State a liability which is significantly more limited than would be the lia bility imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under [the IGRA].”). We read in Seminole Tribe an obligation for the federal courts to examine Congress’ stated intent with respect to the scope o f statutory remedies that may be available in any case where an Ex parte Young issue is raised. The crucial12 Justice Kennedy wrote the principal opinion for the Court, but key

provisions of his opinion garnered only one other v ote. See Coeur d’Alene Tribe , 117 S. Ct. at 2031 (Kennedy, J., minority opinion, with Rehnquist, C.J., as to Parts II.B, II.C, and II.D). The controlling concu rrence by Justice O’Connor rejected Justice Kennedy’s view that the Ex parte Y oung doctrine should be applied on a case-by-case approach. See id. at 2043 (O’Connor, J., concurring in judgment, with Scalia, J., and Thomas, J.) The dis sent by Justice Souter rejected both Justice Kennedy’s minority view and the positi on of common ground for the Court’s majority, i.e., that the Ex parte Young doctrine may not be used to obtain prospective injunctive relief that is the functiona l equivalent of a quiet title action against a state, when that relief implicates specia l sovereignty interests. See id. at 2047 (Souter, J., dissenting, with Stevens, J., Gin sburg, J., and Breyer, J.) - 25 - inquiry is whether Congress has expressed an intent , through some kind of statutory scheme, to limit or prevent potential rem edies in a private cause of action even though broader remedies might otherwise be available against the state through the Ex parte Young rule. If so, then under Seminole Tribe , the federal courts are not ordinarily free to go beyondthat congressional intent. The second narrowing of the Ex parte Young doctrine arose in Coeur d’Alene Tribe , a case involving a federal suit by an Indian trib e seeking a declaratory judgment establishing its right to quie t enjoyment over the submerged lands of Lake Coeur d’Alene, in addition to seeking prospective injunctive relief against numerous Idaho state officials to prevent them from exercising the state’s asserted regulatory jurisdiction over those submerg ed lands. Coeur d’Alene Tribe , 117 S. Ct. at 2032. The Court was badly fracture d by the case, 12 but a majority of justices agreed that the Ex parte Young doctrine could not save the- 26 -

tribe’s federal suit even though the tribe sought o nly prospective equitable relief and its suit did not run afoul of any of the other long-recognized limitations to the doctrine. See id. at 2042 (Kennedy, J., majority opinion). Instead, a majority of justices agreed that the tribe’s requested injuncti ve relief would be the “functional equivalent” of a quiet title action against the state. See id. at 2040 (Kennedy, J., majority opinion); id. at 2043 (O’Connor, J., concurring). That kind of relief “implicates special sovereignty interests” that the federal courts must carefully evaluate, bearing in mind the fundamental place of state sovereignty in our federal system. See id. at 2040 (Kennedy, J., majority opinion). After cataloguing the deep historical roots, and the lega l importance, of state regulatory control over, and public ownership of, streams and lakes, the Court ruled that the Ex parte Young doctrine may not be used to support prospective fe deral court injunctive relief against state officials when thatrelief is just as much an intrusion on state sovereignty as an award of moneydamages:

It is apparent, then, that if the Tribe were to prevail, Idaho’s sovereign interest in its lands an d waters would be affected in a degree fully as intru sive as almost any conceivable retroactive levy upon funds in its Treasury. . . . The dignity and status of its stat ehood allows Idaho to rely on its Eleventh Amendment immunity and to insist upon responding to these cla ims in its own courts, which are open to hear and determine the case. Id. at 2042 (Kennedy, J., majority opinion).- 27 -

We read Coeur d’Alene Tribe as imposing an important new requirement on federal courts as part of the Ex parte Young analysis. In light of Coeur d’Alene Tribe , federal courts must examine whether the relief be ing sought against a state official “implicates special sovereignty interests. ” If so, we must then determine whether that requested relief is the “functional eq uivalent” to a form of legal relief against the state that would otherwise be ba rred by the Eleventh Amendment. In the end, we must not extend the Ex p arte Young doctrine to allow a suit for prospective equitable relief when that relief would be just as intrusive, if not more so, into core aspects of a s tate’s sovereignty.

C. Kansas’ state sovereignty over taxation issues. With this understanding of the doctrine of sovereig n immunity under the Eleventh Amendment, we now turn to the effect of th at doctrine on the suit by the natural gas pipelines against the Kansas officials in charge of property tax valuations for the state of Kansas. In their suit, the pipelines have asked the court to declare that these state defendants “have and co ntinue to wrongfully value, assess and retain excessive taxes” against the pipe lines. They also have asked the court to declare that the director of the Division of Property Valuation “should recertify to Counties for subject and future tax ye ars lawful values which comply with state and federal constitutions.”- 28 -

It is evident merely from reading the text of these requests for declaratory relief that at least a portion of the requested rel ief runs afoul of some of the longaccepted principles of the Ex parte Young doctrine. As discussed above, federal courts may not invoke Ex parte Young in order to consider claims for retrospective relief or claims that seek an adjudic ation of the legality of past state conduct. See Papasan , 478 U.S. at 277-78. The Ex parte Young doctrine applies only to continuing wrongs. See id. at 278. Furthermore, federal courts may not invoke Ex parte Young to render a declaratory judgment which merely has the practical effect of adjudicating retrospective liab ility issues that would otherwise arise in a suit for money damages. See Green , 474 U.S. at 73. On the basis of these two principles, we conclude that Ex parte Young cannot be invoked to preserve federal jurisdiction for that portion of the pipelines’ equitable claims that seek retrospective relief. Thus, there is no federal jurisdiction to declare that the state defendants h ave wrongfully valued the pipelines’ property in the past. And, there is no federal jurisdiction to declare that the state defendants should recertify past taxyear assessments. Both of those requests fall outside the scope of the Ex parte You ng doctrine, and as a result, they fall squarely within the Eleventh Amendment’s bar of sovereign immunity. The only remaining claims that might lie within the Ex parte Young doctrine are the pipelines’ requests for declaratio ns as to the state defendants’13 We note that the 4-R Act is not the appropriate statute on which to make a

comparison between the remedy available under Ex parte Young and the statutory remedies that Congress otherwise has circumscribed. In this case, the natural gas pipelines do not come within the scope of the 4-R A ct because they do not possess the “rail transportation property” that is the subject of the 4-R Act. See 49 U.S.C. § 11501(a)(3). Hence, relief is not bein g sought under the 4-R Act nor does that act purport to limit the natural gas pipe lines’ claims asserted here under the United States Constitution. - 29 - ongoing practices and the property valuations for f uture years. However, these claims run afoul of the doctrinal requirements of S eminole Tribe and Coeur d’Alene Tribe , and as a result, we conclude that these equitable claims also are barred by the Eleventh Amendment.

1. Prospective relief under Seminole Tribe . According to Seminole Tribe , we must evaluate whether the equitable relief being sought through the Ex parte Young mechanism is broader than the relief Congress has otherwise circumscribed in relevant st atutes. If so, the Ex parte Young mechanism for avoiding the Eleventh Amendment is n ot available. Under the analysis required by Seminole Tribe , we find that the Tax Injunction Act, 28 U.S.C. § 1341 (1994), is the app ropriate statute on which to base a comparison between the judge-made Ex parte Y oung doctrine and Congress’ statutory scheme. 13 In the Tax Injunction Act Congress expressly limited the power of federal courts to issue certai n types of remedies pertaining to the assessment, levy or collection of state taxes. Furthermore, we find that the- 30 -

criteria for relief under the Tax Injunction Act ar e significantly narrower than the criteria under Ex parte Young . As a result, we conclude that the Ex parte Youn g doctrine may not be invoked for the pipelines’ pros pective claims that seek relief that is precluded by the Tax Injunction Act. The Tax Injunction Act provides that federal courts “shall not enjoin, suspend or restrain the assessment, levy or collect ion of any tax under State law where a plain, speedy and efficient remedy may be h ad in the courts of such State.” 28 U.S.C. § 1341. Thus, the Act clearly f unctions as a limitation on the equitable remedies a federal court may provide in aproperty tax dispute that otherwise has appropriate federal court subject-matter jurisdiction, i.e., federal question jurisdiction or diversity jurisdiction. U nder the Tax Injunction Act, the only avenue by which a claim for injunctive relief against state or local taxes may be brought to federal court is where the state has failed to provide a “plain, speedy and efficient remedy.” See id. The Act means that a state must provide a forum, according to the Supreme Court, that allows an “opportunity to raise constitutional objections” to the contested tax. S ee California v. Grace Brethren Church , 457 U.S. 393, 412 & n.26 (1982). A state remedy is “plain, speedy and efficient” if it “provides the taxpayer with a ‘ful l hearing and judicial determination’ at which [the taxpayer] may raise any and all constitutional objections to the tax.” Id. at 411; see also Rosewell v. LaSalle Nat’l Bank , 450- 31 -

U.S. 503, 512 (1980) (“On its face, the ‘plain, spe edy and efficient remedy’ exception appears to require a state-court remedy t hat meets certain minimal procedural criteria.”). In Rosewell , the Court held that the fact that the state procedure entails a two-year delay and the taxpayermay not get interest on any refund ultimately awarded does not make the remedy inadequate. See Rosewell , 450 U.S. at 512. Under the Act, if the state provi des adequate procedural due process to allow a taxpayer to raise any constituti onal objections, then the state has done all that is required under the Tax Injunct ion Act, and as a consequence, the federal courts are foreclosed from hearing sucha tax challenge. See Grace Brethren , 457 U.S. at 412-13. There is no such similar limit on the scope of the Ex parte Young doctrine. Indeed, it appears to be clear from the concurring and dissenting opinions in Coeur d’Alene Tribe that an Ex parte Young injunction still may issue even when the state courts would provide an adequate forum fo r the plaintiff’s constitutional claims. See Coeur d’Alene Tribe , 117 S. Ct. at 2045 (O’Connor, J., concurring) (“Not only do our early Young cases fail to rely on the absence of a state forum as a basis for jurisdiction, but we also permitted fed eral actions to proceed even though a state forum was open to hear the plaintiff’s claims.”) (emphasis i n original); id. at 2057 (Souter, J., dissenting) (“The [Kennedy] o pinion’s notion that availability of a state forum should have some bearing on the applicability of14 Our conclusion on this question should not be interpreted as suggesting

anything about the nature of the criteria for prosp ective injunctive relief in the opposite context when the state has failed to provi de a plain, speedy, and efficient remedy. In that situation, which we do not face he re, it may well be that the criteria for a remedy under Ex parte Young and the Tax Injunction Act are coextensive.

15 It is worth pointing out that Congress enacted the Tax Injunction Act in part as a response to the Court’s fashioning of the Ex parte Young remedy that allowed injunctive suits against state officials. See Rosewell , 450 U.S. at 522 n.28. Through the Tax Injunction Act, Congress int ended to curtail the ability of private litigants to challenge their state tax bill s in federal court through the Ex parte Young mechanism. See id. - 32 - Ex parte Young is . . . as much at odds with precedent as with ba sic jurisdictional principles.”). Thus, under the Ex parte Young doctrine, a plaintiff still would be able to obtain prospective injunctive relief agains t a state official in a case where the Tax Injunction Act would bar the very same fede ral-court injunction because the state’s remedy was “plain, speedy and efficient .” As a result, we cannot avoid the conclusion that wh en a state provides an adequate forum for a plaintiff’s federal claims, th e criteria for a remedy under Ex parte Young are broader than the criteria under the Tax Injunc tion Act. 14 On the basis of that conclusion, the rule in Seminole Trib e – that federal courts may not imply the judge-made remedy of Ex parte Young when Congress has provided a more narrowly circumscribed remedy – controls this case. 15 See Seminole Tribe , 117 S. Ct. at 1133. Thus, when a state provides anadequate forum to hear claims for injunctive relief against state taxes, there is no Ex parte Young mechanism- 33 -

available to avoid the Eleventh Amendment’s prohibi tion of suits against unconsenting states. Seeking an escape from this doctrinal logic, the pi pelines allege that the Ex parte Young mechanism is still available for this suit because Kansas consistently has failed to provide an adequate state remedy. Th e district court agreed with both the conclusion and the premise of this argument. See CIG IV , 1996 WL 363047 at *2. We are inclined to disagree. Althou gh the pipelines did not persuade the Kansas courts to give them the relief they sought, they did have the opportunity to raise all their constitutional claim s, and in fact they availed themselves of such opportunities. An adequate stat e remedy only guarantees adequate due process access to the state courts; itdoes not guarantee victory to the taxpayer on the merits of the claims asserted. Nevertheless, we need not make a final decision as to the adequacy of Kansas’ judi cial procedures because the Court’s decision in Coeur d’Alene Tribe compels the conclusion that the Eleventh Amendment bars the pipelines’ suit.

2. Prospective relief under Coeur d’Alene Tribe . In Coeur d’Alene Tribe , a majority of the justices clearly held that the Ex parte Young mechanism for federal-court injunctive relief is n ot available when the relief “implicates special sovereignty interest s.” Coeur d’Alene Tribe , 117 S. Ct. at 2040 (Kennedy, J., majority opinion). The C ourt held that the federal16 We do note, however, that a state’s sovereign powerto tax its citizens has

been a hallmark of the western legal tradition. Th is historical fact was clearly in the mind of the Framers when they considered the intertwining doctrines of sovereign immunity and a state’s power to tax its c itizens. As Alexander Hamilton explained in The Federalist ,

I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontroll able authority to raise their own revenues for the suppl y of their own wants. And making this concession, I aff irm that (with the sole exception of duties on imports and exports) they would, under the plan of the conventi on, (continued...) - 34 - judiciary cannot allow “a reflexive reliance on an obvious fiction” in the Ex parte Young doctrine to overcome the “real limitation on a fed eral court’s federalquestion jurisdiction” that is imposed by the Eleve nth Amendment. See id. at 2034. Thus, the crucial question in this case come s down to whether a state’s power to assess and levy personal property taxes onproperty within its borders “implicates special sovereignty interests.” In Coeur d’Alene Tribe , the Court sought to answer the question of whethe r state ownership and regulation of submerged lands w ithin its borders “implicates special sovereignty interests” by reviewing the doc trines of sovereignty going as far back as Justinian’s Institutes . The Court catalogued the unique position of state sovereignty over navigable waters that then e xisted in the English common law and later was imported into the American legal system. For our own purposes, we need not go so far as an i nquiry into Roman law 1616 (...continued) retain that authority in the most absolute and unqu alified sense; and that an attempt on the part of the natio nal government to abridge them in the exercise of it wo uld be a violent assumption of power, unwarranted by any article or clause of its Constitution. The Federalist , No. 32 (A. Hamilton). This view of the singular importance of tax administration for the states recently was reiterat ed by the Court: “We have long recognized that principles of federalism and comitygenerally counsel that courts should adopt a hands-off approach with respect to s tate tax administration.” National Private Truck Council, Inc. v. Oklahoma Ta x Comm’n , 515 U.S. 582, 586 (1995). - 35 - because Congress has done our work for us. Congres s has made it clear in no uncertain terms that a state has a special and fund amental interest in its tax collection system. See Act of Aug. 21, 1937 (Tax Injunction Act), Pub. L. No. 332, 50 Stat. 738, ch. 726, § 1, (1937) (codified at 28 U.S.C. § 1341); see also S. Rep. 1035, 75th Cong., at 2 (1937) (noting that the Tax Injunction Act was intended to protect states from well-financed litig ants who could “seriously disrupt State and county finances” by withholding t ax payments during the course of federal-court litigation). As the Supreme Courtexplained in Rosewell , the Tax Injunction Act “was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.” Rosewell , 450 U.S. at 522. The statute had its roots in Congress’ recognition of “the imperative need of a State to administer its own fiscal operations.” Tully v. Griffin, Inc. , 429 U.S. 68, 73 (1976). We do not17 The pipelines vehemently argue that their requested relief will not impose

a drain on the treasury of the state of Kansas beca use the property taxes actually are collected and retained by the local counties. They further affirmatively waive any claim in their suit that might be interpreted a s a request for money damages against the state. It appears, however, that a portion of the property taxes collected by the counties are passed along to the s tate to fund some state education programs, and the state defendants conten d that this fact means the pipelines are requesting a money judgment against the state. Despite the vigor of the parties’ argument on this issue, we need not determine the particular downstream location of the disputed property tax revenues. The question under Coeur d’Alene Tribe is not whether a plaintiff’s requested relief actually constitutes a call on the state treasury, but rather whether the requested relief is the “functional equivalent” of some form of legal relief that would be barred by the Eleventh Amendment. See Coeur d’Alene Tribe , 117 S. Ct. at 2040. We believe that a request to “recerti fy” property tax assessments actually is the “functional equivalent” of a money judgment against the state and it intrudes on the state’s special sovereignty inte rests. - 36 - doubt, therefore, that a state’s interests in the i ntegrity of its property tax system lie at the core of the state’s sovereignty. Indeed , where it is possible to imagine a state government continuing to maintain its soverei gnty despite the lack of any ownership of land, cf. Coeur d’Alene Tribe , 117 S. Ct. at 2041, it is impossible to imagine that a state government could continue to e xist without the power to tax. Furthermore, we have no hesitation in concluding th at the declaratory relief requested by the pipelines – i.e., that the state of Kansas should “recertify” its tax assessment of the pipelines’ personal property in K ansas – is “fully as intrusive” into the state’s sovereignty as would be a retroact ive money judgment against excessive property taxes. 17See id. at 2043. The pipelines’ request to rewrite Kansas’ property tax code with respect to its appli cation against the personal- 37 -

property of natural gas pipelines is certainly a ma jor intrusion into Kansas’ special sovereignty interests. The Eleventh Amendm ent stands as a barrier to such a request. The Eleventh Amendment requires th at the pipelines’ claims against the state of Kansas must be brought in stat e court. The pipelines argue that it would be the height of injustice to require them to bring their federal constitutional claims in the state courts of Kansas when one of their claims is that Kansas has failed to provid e the pipelines with minimal guarantees of procedural due process. Although we recognize the predicament the pipelines face, we are constrained by the Eleve nth Amendment and the special sovereignty interest a state has in the control of its property tax system. The Supreme Court has held that in cases implicating th e core powers of a state qua state, the Eleventh Amendment directs a litigant to the state’s courts. Of course, a litigant always may seek review of the state court decisions by the U.S. Supreme Court through a petition for certiorari. See 28 U.S.C. § 1257. As lower federal courts, however, this court and the federal distric t court in Kansas may not entertain the pipeline’s suit ultimately seeking fe deral declaratory relief against the tax policy of the state of Kansas. The relief sought by the pipelines impermissibly intrudes upon Kansas’ “dignity and st atus” as a sovereign government.- 38 - II. The state defendants’ additional claims. In addition to its holding under the Ex parte Young doctrine, the district court rejected the state defendants’ other argument s against federal jurisdiction. The court held that the pipelines’ suit was not barred by either the Tax Injunction Act or the Rooker/Feldmandoctrine. See CIG IV , 1996 WL 363047, at *2, *3 (Aplt. App. at 215, 216-17). In light of our concl usion that the Eleventh Amendment extends the sovereign immunity of the state of Kansas as a bar against the pipelines’ suit, we need not address th ese other issues. Instead, we must simply vacate the district court’s decision. See Aaron v. Kansas , 115 F.3d 813, 818 (10th Cir. 1997) (vacating the district co urt’s judgment after concluding that the Eleventh Amendment barred federal jurisdic tion in the case).

Conclusion In the interests of judicial economy, we hereby CON SOLIDATE these two appeals, and we GRANT the appellees’ motion to dism iss the named Kansas state agencies as defendants and to dismiss their state-l aw claims based on the Kansas Constitution and Kansas common law. Furthermore, relying on the jurisdictional bar impo sed by the Eleventh Amendment, we conclude that these appeals must be D ISMISSED, the judgment of the district court VACATED, and the case REMANDE D to the district court- 39 -

with instructions to dismiss all claims against the remaining state defendants in this case.