UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CSX TRANSPORTATION, 

INCORPORATED,

Plaintiff-Appellee,

and

UNITED STATES OF AMERICA,

Intervenor,

v.

THE BOARD OF PUBLIC WORKS OF THE  No. 01-2492 STATE OF WEST VIRGINIA; BOB WISE,

Governor; JOE MANCHIN, III,

Secretary of State; JOHN D. PERDUE,

State Treasurer; GLEN B. GAINER,

III, State Auditor; DARRELL V.

MCGRAW, JR., Attorney General;

GUS DOUGLASS, Commissioner of

Agriculture; DAVID STEWART, State

Superintendent of Schools,

Defendants-Appellants. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph Robert Goodwin, District Judge.

(CA-01-299-1)

Argued: May 7, 2002

Decided: July 12, 2002

Before WIDENER and MICHAEL, Circuit Judges, and

C. Arlen BEAM, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.
Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Katherine A. Schultz, Senior Deputy Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellants. James W. McBride, BAKER, DONELSON,

BEARMAN & CALDWELL, Washington, D.C., for Appellee. Stephanie Robin Marcus, Appellate Staff, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: Scott E. Johnson, Senior Assistant Attorney General, Steven E. Dragisich, Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellants. Anne M. Stolee, BAKER, DONELSON, BEARMAN &

CALDWELL, Washington, D.C., for Appellee. Robert D. McCallum,

Jr., Assistant Attorney General, Karl K. Warner, II, United States

Attorney, Mark B. Stern, Appellate Staff, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

CSX Transportation, Inc. (CSX) brought this lawsuit against the

Board of Public Works of the State of West Virginia (the Board) and

its officers, claiming that the Board’s ad valorem tax assessment of

its rail transportation property violates section 306 of the Railroad

Revitalization and Regulatory Reform Act of 1976 (the 4-R Act), now

codified at 49 U.S.C. § 11501. The Board moved to dismiss, arguing

that the lawsuit is barred by West Virginia’s Eleventh Amendment

2 CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS
immunity. The district court denied the motion, and the Board filed

this interlocutory appeal. We affirm. 

I.

Section 306 of the 4-R Act was enacted to protect railroads from

discriminatory state taxation.1 The statute prohibits "a State, subdivision of a State, or authority acting for a State or subdivision of a

State" from assessing rail transportation property at a higher percentage of the property’s true market value than the percentage applied to

other commercial and industrial property. 49 U.S.C. § 11501(b)(1).

The statute also prohibits states, subdivisions, and authorities from

levying or collecting taxes based on discriminatory assessments of

rail transportation property. Id. § 11501(b)(2).2 Federal district courts

have jurisdiction to prevent state violations of these duties if "the ratio

of assessed value to true market value of rail transportation property

exceeds by at least 5 percent the ratio of assessed value to true market

value of other commercial and industrial property in the same assessment jurisdiction." Id. § 11501(c). 

1Section 306 has twice been recodified, but the recodifications were

not intended to make any substantive changes to the statute. See Clinchfield R.R. Co. v. Lynch, 700 F.2d 126, 128 n.1 (4th Cir. 1983). We cite

to the current codification of section 306 at 49 U.S.C. § 11501, but refer

to the statute in the text as "section 306 of the 4-R Act." 

2

49 U.S.C. § 11501(b) provides in relevant part: 

The following acts unreasonably burden and discriminate against

interstate commerce, and a State, subdivision of a State, or

authority acting for a State or subdivision of a State may not do

any of them: 

(1) Assess rail transportation property at a value that has

a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other

commercial and industrial property in the same assessment

jurisdiction has to the true market value of the other commercial and industrial property. 

(2) Levy or collect a tax on an assessment that may not

be made under paragraph (1) of this subsection. 

CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS 3
In this lawsuit, CSX alleges that the Board’s tax assessments of its

rail transportation property for the 2000 tax year violate section 306.

Under West Virginia law, the Board is responsible for determining

the assessed value of rail transportation property and other public service company property in West Virginia. W. Va. Code § 11-6-1. Nonpublic service property in West Virginia is assessed for ad valorem

tax purposes by tax assessors for the counties in which the property

is located. When multiplied by the tax rate, these assessed values

determine the amount of ad valorem taxes to be paid. CSX alleges

that for the 2000 tax year, the Board assessed its rail transportation

property in West Virginia at a value that was at least 60% of the property’s actual market value. CSX claims that, in contrast, the nonpublic service property of commercial and industrial taxpayers in

West Virginia was assessed for the 2000 tax year at 55% or less of

the property’s actual market value. According to CSX, this disparity

violates section 306. CSX has withheld payment of the portion of its

ad valorem taxes based on the Board’s allegedly excessive assessment. It seeks prospective injunctive and declaratory relief that would

prevent the Board and its officers from continuing to assess its property in an illegal manner and from collecting payment of the allegedly

illegal taxes that CSX has refused to pay. 

Even this brief recitation of the facts produces a distinct sense of

deja vu. Although this case is new in the sense that it challenges the

ad valorem tax assessments for the 2000 tax year, we dealt with

essentially the same legal arguments and factual contentions regarding the 1996 tax year in CSX Transportation, Inc. v. Board of Public

Works of the State of West Virginia, 138 F.3d 537 (4th Cir. 1998)

(CSX I).3 In that case, as in this one, CSX and another railroad had

withheld payment of the allegedly illegal portion of their ad valorem

taxes and sought an injunction against future collection of the illegal

taxes. The district court ruled that it had no jurisdiction to hear the

case. It reasoned that section 306’s purported abrogation of state sovereign immunity could not be justified as an exercise of Congress’s

power under Section Five of the Fourteenth Amendment and was

3We addressed a challenge by CSX and another railroad to the Board’s

ad valorem tax assessments for the 1993 tax year in CSX Transportation,

Inc. v. Board of Public Works of the State of West Virginia, 95 F.3d 318

(4th Cir. 1996). 

4 CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS
therefore invalid under the Supreme Court’s recent decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). The district

court also ruled that Ex Parte Young was inapplicable on the ground

that the railroads sought retrospective rather than prospective relief.

On appeal, we found it unnecessary to reach the question of whether

section 306 was a valid abrogation of state sovereign immunity "because even assuming that section 306 cannot be justified as an exercise of Section Five of the Fourteenth Amendment . . . Ex Parte

Young authorizes an injunction . . . that will provide the railroads with

complete relief." CSX I, 138 F.3d at 540. 

CSX I appears to stand, then, for the proposition that the relief

sought by CSX in this case is available under Ex Parte Young regardless of whether section 306 validly abrogates state sovereign immunity. The district court in this case agreed, and therefore denied the

Board’s motion to dismiss the case as barred by West Virginia’s Eleventh Amendment immunity. The Board has filed this interlocutory

appeal. See P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 141 (1993) (holding that denial of a motion to dismiss

on grounds of Eleventh Amendment immunity is immediately appealable under the collateral order doctrine). 

II.

The Board labors mightily to explain why its sovereign immunity

arguments are not precluded by CSX I. Yet even assuming the

absence of issue preclusion, we have no doubt that our decision in

CSX I controls the outcome of this case. To the extent that the Board

advances arguments that were not before us in that case, we find those

arguments unconvincing. As in CSX I, we hold that CSX’s lawsuit

may go forward under Ex Parte Young regardless of whether section

306 validly abrogates West Virginia’s Eleventh Amendment immunity.4

4

In the time since our decision in CSX I, three circuits have held that

section 306 validly abrogates state sovereign immunity under Section

Five of the Fourteenth Amendment. See Burlington N. and Santa Fe Ry.

Co. v. Burton, 270 F.3d 942 (10th Cir. 2001); Wheeling & Lake Erie Ry.

Co. v. Pub. Util. Comm’n of the Commonwealth of Penn., 141 F.3d 88

(3d Cir. 1990); Oregon Short Line R.R. Co. v. Dep’t of Revenue Oregon,

139 F.3d 1259 (9th Cir. 1998). 

CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS 5
The Board concedes that, under CSX I, the relief sought by CSX

in this case is prospective rather than retrospective and that this relief

would ordinarily be available under Ex Parte Young. It argues, however, that Ex Parte Young does not apply here for two reasons. First,

the Board contends that CSX cannot enforce its section 306 rights

under Ex Parte Young because the substantive provisions of section

306 are unconstitutional in their entirety. Second, the Board claims

that Ex Parte Young is inapplicable under Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261 (1997), because the relief sought by

CSX would unduly infringe upon West Virginia’s "special sovereignty interest" in taxing the property within its borders. Neither argument is persuasive. 

In its first argument, the Board contends that if section 306 does

not effectively abrogate state sovereign immunity, the statute is

unconstitutional across the board and that relief under Ex Parte Young

is therefore unavailable. Consequently, the Board argues that (despite

CSX I) we must reach the question of whether section 306 validly

abrogates West Virginia’s Eleventh Amendment immunity. We agree

that Ex Parte Young cannot help CSX if section 306 is unconstitutional, but we are puzzled by the Board’s apparent claim that the constitutionality of section 306 in its entirety (and thus the applicability

of Ex Parte Young) depends on whether the provision validly abrogates state sovereign immunity. The Board’s argument turns on the

claim that, unlike other statutes discussed in the Supreme Court’s

cases on the Ex Parte Young doctrine, section 306 is unique because

it applies only to states. The Board suggests that if we strip away the

aspects of the statute that are rendered invalid by the Eleventh

Amendment, nothing remains that could be enforced through the

mechanism of Ex Parte Young. In other words, the Board’s argument

is that when a statute applies only to states, its failure to validly abrogate Eleventh Amendment immunity also renders it unconstitutional

in its entirety. Without expressing any opinion on the possible merits

of this argument in a different case, we conclude that the argument

does not work here because section 306 can be enforced against entities that are not protected by Eleventh Amendment immunity. Section

306 applies not only to states, but also to "subdivision[s] of a State"

and "authorit[ies] acting for a State or subdivision of a State." 49

U.S.C. § 11501(b). As CSX points out, it is hornbook law that counties, cities, and other subdivisions of states are not protected by the

6 CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS
Eleventh Amendment. See, e.g., Edelman v. Jordan, 415 U.S. 651,

667 n.12 (1974); Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995).5 As

a result, section 306 would not be unconstitutional in its entirety even

if the Board were correct that (1) section 306 fails to validly abrogate

state sovereign immunity and (2) a statute applying only to states that

fails to abrogate state sovereign immunity is therefore unconstitutional. Accordingly, we conclude that the Board’s first argument fails.

The Board’s second argument is that the Ex Parte Young doctrine

cannot be used to enforce section 306 because West Virginia’s

authority to tax the rail transportation property within its boundaries

is a protected "special sovereignty interest" under the Supreme

Court’s decision in Coeur d’Alene. We disagree. First, we note that

because Coeur d’Alene was decided prior to our decision in CSX I and

the parties were given an opportunity to brief the court on its implications, we think it likely that the Board’s Coeur d’Alene argument is

precluded. Second, even if the argument is properly before us, we

refuse to read Coeur d’Alene so broadly as the Board suggests. In

Coeur d’Alene, the Supreme Court considered a claim by the Coeur

d’Alene Tribe that federal law gave the tribe beneficial ownership of

the submerged lands and banks of Lake Coeur d’Alene in Idaho. The

Court held that even prospective relief under Ex Parte Young was

unavailable because the lawsuit was the "functional equivalent of a

quiet title action which implicate[d] special sovereignty interests."

Coeur d’Alene, 521 U.S. at 281. The Court pointed out that the lawsuit sought a "determination that the lands in question are not even

within the regulatory jurisdiction of the State," as well as injunctive

relief that "would bar the State’s principal officers from exercising

their governmental powers and authority over the disputed lands and

waters." Id. at 282. This, the Court explained, would affect Idaho’s

sovereign interests "in a degree fully as intrusive as almost any con5The original language of section 306 further undermines the Board’s

argument. As originally enacted as part of the 4-R Act, the statute prohibited discriminatory taxation of railroads by "a State, a political subdivision of a State, or a governmental entity or person acting on behalf of

such State or subdivision." 4-R Act, Pub. L. No. 94-210, § 306, 90 Stat.

31, 54 (1976) (emphasis added). As we noted above, see supra at 3 n.1,

the changes made to the language of section 306 during its recodification

were not intended to be substantive. 

CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS 7
ceivable retroactive levy upon funds in its Treasury." Id. at 287. In

sum, Coeur d’Alene ruled that Ex Parte Young did not apply because

the Tribe’s lawsuit was more than simply a suit to enjoin state officials from an ongoing violation of federal law. Instead the lawsuit was

"the functional equivalent of a suit against the State of Idaho itself

because it sought to dispossess the State from land within its borders

and to remove that land from the State’s regulatory authority." TFWS,

Inc. v. Schaefer, 242 F.3d 198, 205 (4th Cir. 2001) (internal quotation

marks and citation omitted); see also Agua Caliente Band of Cahuilla

Indians v. Hardin, 223 F.3d 1041, 1048 (9th Cir. 2000) (stating that

the Young doctrine was inapplicable in Coeur d’Alene because of the

"unique divestiture of the state’s broad range of controls over its own

lands" and that "the question posed by Coeur d’Alene is not whether

a suit implicates a core area of sovereignty, but rather whether the

relief requested would be so much a divestiture of the state’s sovereignty as to render the suit as one against the state itself"). Although

we recognize the historical and practical importance of a state’s powers of taxation, we do not think the relief sought by CSX under section 306 of the 4-R Act approaches the level of interference with state

sovereignty that was present in Coeur d’Alene. Section 306 neither

prevents West Virginia from taxing rail transportation property nor

dictates the absolute rate at which the state may tax such property. It

simply prevents state officials from imposing discriminatory taxes on

rail carriers. This is the sort of garden variety prospective relief that

has traditionally been available under Ex Parte Young, and it remains

available after Coeur d’Alene. Cf. TFWS, 242 F.3d at 206 (explaining

that Ex Parte Young was applicable where the plaintiff was "not seeking to strip Maryland of its authority to regulate liquor under the

Twenty-first Amendment," but simply sought "to require [the relevant

state official] to regulate in a way that is consistent with the Sherman

Act"). We conclude that the Board’s second argument fails because

CSX’s claims under section 306 do not threaten a sufficiently significant intrusion on West Virginia’s powers of taxation to implicate the

state’s "special sovereignty interests." Cf. Hardin, 223 F.3d at 1049

(holding that suit by federally recognized Native American tribe seeking prospective relief against certain applications of California’s sales

and use tax did not interfere with the state’s taxation powers enough

for Coeur d’Alene to bar application of the Ex Parte Young doctrine);

but see ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1193 (10th Cir.

1998) (holding that "a state’s power to assess and levy personal prop8 CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS
erty taxes on property within its borders" qualifies as a special sovereignty interest under Coeur d’Alene). 

We have considered the other arguments raised by the Board and

conclude that they do not merit discussion. 

III.

For the foregoing reasons, we conclude that the Board has failed

to show why this case is not controlled by our decision in CSX I. We

reaffirm our holding in that case that prospective relief against the

individual defendants is available under Ex Parte Young regardless of

whether section 306 validly abrogates West Virginia’s Eleventh

Amendment immunity. Accordingly, the district court’s order denying the Board’s motion to dismiss is

AFFIRMED.

CSX TRANSPORTATION, INC. v. THE BOARD OF PUBLIC WORKS 9