FILED

United States Court of Appeals

Tenth Circuit

October 27, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TARRANT REGIONAL WATER

DISTRICT, a Texas State Agency, 

Plaintiff - Appellee,

v.

RICHARD SEVENOAKS; KENNETH

K. KNOWLES; JACK W. KEELY; ED

FITE; LINDA LAMBERT; FORD

DRUMMOND; LONNIE FARMER;

JESS MARK NICHOLS; RUDOLF

JOHN HERRMANN, in their official

capacities as members of the

Oklahoma Water Resources Board

(OWRB) and the Oklahoma Water

Conservation Storage Commission,

Defendants - Appellants.

No. 07-6273

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. 5:07-CV-00045-HE)

M. Daniel Weitman, Assistant Attorney General (Kari Y. Hawkins, Assistant

Attorney General, with him on the brief), Office of the Oklahoma Attorney

General, Litigation Section, Oklahoma City, Oklahoma, appearing for Appellants.

Clyde A. Muchmore, Crowe & Dunlevy, Oklahoma City, Oklahoma (Harvey D.

Ellis and L. Mark Walker, Crowe & Dunlevy, Oklahoma City, Oklahoma; Kevin

L. Patrick and Scott C. Miller, Patrick, Miller, Kropf, P.C., Aspen, Colorado, with

him on the brief), appearing for Appellee.
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Before TACHA, BRISCOE, and HARTZ, Circuit Judges.

TACHA, Circuit Judge.

The plaintiff-appellee, Tarrant Regional Water District (“TRWD”), is a

Texas agency responsible for supplying public water to the northern part of the

state. The defendants-appellants are the nine members of the Oklahoma Water

Resources Board (“OWRB”), the Oklahoma agency responsible for issuing

permits for the appropriation, sale, and use of Oklahoma water. TRWD filed suit

in federal district court, alleging that Oklahoma law unconstitutionally prevents

TRWD from appropriating or purchasing water located in Oklahoma. The

defendants filed a motion to dismiss, claiming in part that the matter was not a

ripe “case or controversy,” that the defendants were immune from suit under the

Eleventh Amendment, and that the court should abstain under the doctrine of

Younger v. Harris. 401 U.S. 37 (1971). The district court denied the motion, and

the defendants now appeal. We hold first that there is a case or controversy ripe

for adjudication. We have jurisdiction under 28 U.S.C. § 1292(a)(1) to consider

the district court’s rejection of Eleventh Amendment immunity, which we

AFFIRM. Because we do not have jurisdiction to consider the district court’s

decision not to abstain, we DISMISS that portion of the defendants’ appeal.
1

The Compact was approved by Congress, see Pub. L. No. 96-564, and

therefore has the status of federal law. See New York v. Hill, 528 U.S. 110, 111

(2000); Texas v. New Mexico, 462 U.S. 554, 564 (1983). 

2

Under Oklahoma law, the defendants are required to follow an attorney

general’s opinion until a court determines otherwise. See Hendrick v. Walters,

865 P.2d 1232, 1243 (Okla. 1993) (“Public officers have the duty to follow those

opinions until they are judicially relieved of compliance.”). The defendants assert

that the Red River Compact itself has overruled this opinion, but the Compact is

not a judicial action and therefore does not by itself relieve OWRB officers from

compliance with the attorney general’s opinion.

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I. BACKGROUND

The Red River begins in the Texas panhandle and flows east along the

border of Texas and Oklahoma, and then south through Arkansas and Louisiana. 

In 1978, these four states entered into the Red River Compact, which apportions

water from the river and its tributaries to the signatory states.1

 The Oklahoma

legislature has also enacted a series of laws that TRWD calls “anti-export laws,”

which regulate the use and transfer of surface water in Oklahoma. For example,

the legislature established a moratorium on the sale or exportation of water

outside the state that is effective until November 2009. Okla. Stat. tit. 74,

§ 1221.A; Okla. Stat. tit. 82, § 1B(A). The Oklahoma Attorney General also has

issued an opinion2

 based on his interpretation of Oklahoma law that concludes:

“we consider the proposition unrealistic that an out-of-state user is a proper

permit applicant before the Oklahoma Water Resources Board. We can find no

intention to create the possibility that such a valuable resource as water may

become bound, without compensation, to use by an out-of-state user.” Okla. Op.
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Att’y Gen. No. 77-274 (1978). Other “anti-export statutes” include Okla. Stat. tit.

82, § 105.16(B), which the plaintiffs contend discriminatorily provides for surface

water appropriations exceeding seven years only when the use will benefit

Oklahoma; Okla. Stat. tit. 82, § 1085.2(2), which prohibits the OWRB from

contracting to convey title or allow the use of water outside of Oklahoma without

legislative authorization; Okla. Stat. tit. 82, § 1085.22, which prohibits the

Oklahoma Water Conservation Storage Commission (of which the defendants are

ex officio members, see Okla. Stat. tit. 82, § 1085.18) from selling water out of

state; Okla. Stat. tit. 82, § 1266(9), which by definition excludes out-of-state

entities from membership in an Oklahoma water district; and Okla. Stat. tit. 82,

§ 1324.10(B), which prohibits an Oklahoma water district from selling or

exporting water outside of the state without the consent of the legislature.

TRWD filed suit in federal district court against the defendants in their

official capacities, contending that Oklahoma law unconstitutionally prohibits

TRWD from obtaining water located in Oklahoma. According to TRWD, the Red

River Compact preempts Oklahoma’s “anti-export laws” under the Supremacy

Clause, and, additionally, those laws violate the dormant Commerce Clause. 

TRWD seeks a declaratory judgment that the laws at issue are unconstitutional

and a permanent injunction enjoining the defendants from enforcing them. 

Shortly after it filed its complaint, TRWD submitted an application to the OWRB

for an appropriation of water. The parties later stipulated that the OWRB would
3

The defendants raised the ripeness issue only in their reply brief, and we

generally do not review issues raised for the first time in a reply brief. See Stump

v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Because the issue, however, goes to

this court’s subject matter jurisdiction, we will consider the defendants’

challenge. See Kaw Nation v. Lujan, 378 F.3d 1139, 1142 (10th Cir. 2004). 

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not act on the application until this case was resolved.

The defendants filed a motion to dismiss, arguing that (1) there is no case

or controversy as required to establish federal jurisdiction because the issue is not

ripe for adjudication; (2) they are entitled to immunity under the Eleventh

Amendment; (3) the district court should abstain under Younger or Burford v. Sun

Oil Co., 319 U.S. 315 (1943); and (4) Louisiana and Arkansas, as signatories to

the Red River Compact, are indispensable parties. The district court denied the

motion. On appeal, the defendants reassert their arguments relating to ripeness,

immunity, and Younger abstention.3

II. DISCUSSION

A. Case or Controversy

The federal courts’ jurisdiction extends only to actual cases or

controversies. Garcia v. Bd. of Educ., 520 F.3d 1116, 1123 (10th Cir. 2008). 

“[T]his means that, throughout the litigation, the plaintiff must have suffered, or

be threatened with, an actual injury traceable to the defendant and likely to be

redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7

(1998) (internal quotations omitted). The defendants argue that there is no case

or controversy because the issue is not ripe for adjudication. The defendants
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claim the OWRB could still grant TRWD’s application, in which case no dispute

would exist. We disagree, because “a plaintiff challenging the constitutionality

of a state statute has a sufficiently adverse legal interest to a state enforcement

officer sued in his representative capacity to create a substantial controversy

when . . . the plaintiff shows an appreciable threat of injury flowing directly from

the statute.” Wilson v. Stocker, 819 F.2d 943, 947 (10th Cir. 1987). As the

district court explained, a fair reading of the statutes at issue demonstrates that

the OWRB is arguably precluded from granting TRWD’s application. TRWD has

thus shown it faces an appreciable threat of injury sufficient to invoke federal

jurisdiction. 

B. Eleventh Amendment Immunity

This court has jurisdiction to hear the OWRB’s appeal on the issue of

Eleventh Amendment immunity. Generally, only final judgments by the district

court are appealable under 28 U.S.C. § 1291. Woodruff v. Covington, 389 F.3d

1117, 1121–22 (10th Cir. 2004). When the district court denies Eleventh

Amendment immunity, however, that denial may be reviewed interlocutorily

under the collateral-order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v.

Metcalfe & Eddy, Inc., 506 U.S. 139, 147 (1993); Timpanogos Tribe v. Conway,

286 F.3d 1195, 1199–1200 (10th Cir. 2002).

For purposes of this appeal, it is not necessary to detail the precise contours

of Eleventh Amendment jurisprudence; the following summary is sufficient. The
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Eleventh Amendment has been interpreted to bar suits against states and state

agencies for money damages in federal court. See Hans v. Louisiana, 134 U.S. 1,

20–21 (1890); Edelman v. Jordan, 415 U.S. 651, 664–66 (1974); ANR Pipeline

Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir. 1998), overruled on other grounds

by Hill v. Kemp, 478 F.3d 1236, 1259 (10th Cir. 2007). However, under the

doctrine of Ex parte Young, 209 U.S. 123 (1908), Eleventh Amendment immunity

does not extend to a state official sued in his official capacity when the plaintiff

seeks only prospective, injunctive relief. Hill, 478 F.3d at 1255–56. The fact that

prospective relief could have financial consequences does not give rise to

immunity, but when the requested relief is akin to a retrospective damages award,

Ex Parte Young is inapplicable and the Eleventh Amendment prohibits the federal

suit. See Edelman, 415 U.S. at 667–69. 

In this case, the defendants are state officials within the ambit of the

Eleventh Amendment, and they are sued in their official capacities. Moreover,

the complaint purports to seek only prospective, injunctive relief, requesting: 

(A) a declaratory judgment (i) of the invalidity, under the Red River

Compact, and the Supremacy and Commerce Clauses of the United

States Constitution, of Oklahoma’s Anti-Export Laws, including

Attorney General Opinion No. 77-274; and (ii) that given Oklahoma’s

obligations under the Red River Compact and the Commerce Clause, no

adverse action may be taken against Plaintiff’s Applications based

solely upon the fact that Plaintiff is a nonresident of Oklahoma or seeks

to deliver or use the appropriated water outside of Oklahoma.

(B) a permanent injunction forbidding Defendants, the members of both

the Oklahoma Water Resources Board and Water Conservation Storage
4

Requesting costs does not transform the action into one for money

damages. See Hutto v. Finney, 437 U.S. 678, 692 (1978). 

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Commission, from enforcing the Anti-Export Laws or abiding by

Oklahoma Attorney General Opinion No. 77-274;

. . .

(D) costs incurred by Plaintiff in this action4

; and

(E) such other equitable and legal relief as the Court may find

appropriate and just under the circumstances of this case.

Thus, this case seems to fall squarely within Ex parte Young. Indeed, the

district court reached this conclusion in holding that the defendants are not

immune from suit.

The defendants’ counter-argument is essentially a two-step analysis. First,

they contend that any decision that infringes upon state sovereignty gives rise to

immunity under Idaho v. Coeur d’Alene Tribe. 521 U.S. 261 (1997). Second,

they argue that if TRWD were to win on the merits, that decision would be akin

to granting TRWD’s water application, and such a decision would infringe upon

Oklahoma’s sovereignty. 

This argument fails at both steps. First, as is explained more fully below,

the issue of sovereignty is no longer a part of our analysis regarding Eleventh

Amendment immunity. Second, even if TRWD wins on the merits, that decision

will not give TRWD the right to immediately begin collecting Oklahoma water. 

Such a decision only would declare certain Oklahoma statutes to be
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unconstitutional.

Citing Coeur d’Alene and ANR Pipeline, the defendants argue that the relief

requested in this case affects a core “sovereign interest” of Oklahoma. This

infringement on their sovereignty, they argue, entitles them to Eleventh

Amendment immunity. In Coeur d’Alene, an Indian tribe sued Idaho officials,

seeking a declaratory judgment to establish the tribe’s right to exclusive use and

quiet enjoyment of certain lands. Coeur d’Alene, 521 U.S. at 265. Although the

suit fell within the traditional scope of Ex parte Young, the Supreme Court held

the suit was barred. Id. at 287. The Court reasoned that the relief requested—the

functional equivalent of quieting title—“implicate[d] special sovereignty

interests” of Idaho. Id. at 281. Tracking this language, we later held in ANR

Pipeline that Coeur d’Alene had narrowed the scope of Ex parte Young such that

federal courts must examine whether the relief requested “implicates special

sovereignty interests.” ANR Pipeline, 150 F.3d at 1190. When it does, this court

wrote, the Ex parte Young exception is inapplicable. Id.

Both the Supreme Court and this court, however, have since limited the

reach of Coeur d’Alene. In Verizon Maryland, Inc. v. Public Service Commission

of Maryland, 535 U.S. 635 (2002), the Supreme Court did not analyze whether the

claim for Eleventh Amendment immunity involved special sovereignty interests. 

See id. at 645. Instead, the Court held that “[i]n determining whether the doctrine

of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only
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conduct a ‘straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Id. We subsequently acknowledged that our decision in ANR

Pipeline misconstrued Coeur d’Alene. See Hill v. Kemp, 478 F.3d 1236, 1259

(10th Cir. 2007). The Hill court explained the transformation of our

jurisprudence and clarified the scope of Ex parte Young:

The Supreme Court’s formulation of Coeur d’Alene in Verizon

Maryland is thus somewhat different from what we had understood it

to be in ANR Pipeline. . . . [T]he Supreme Court in Verizon Maryland

clarified that the courts of appeals need not (and should not) linger over

the question whether “special” or other sorts of sovereign interests are

at stake before analyzing the nature of the relief sought. Thus, to the

extent that our decision in ANR Pipeline read Coeur d’Alene as

requiring “federal courts [to] examine whether the relief sought against

a state official ‘implicates special sovereignty interests,’ ” we recognize

today that Verizon Maryland abrogated this step. Instead, the Supreme

Court has instructed that we are to proceed immediately in every case

to the “straightforward [or so one might hope] inquiry” whether the

relief requested is “properly” characterized as prospective or is indeed

the functional equivalent of impermissible retrospective relief. 

Hill, 478 F.3d at 1259 (citation omitted). Accordingly, we reject the defendants’

argument that the particular sovereignty issues implicated in this case are relevant

to our analysis of Eleventh Amendment immunity. We turn instead to a

straightforward inquiry as to whether the relief requested here is properly

characterized as prospective. 

The relief sought by TRWD—namely, a declaratory judgment that the laws

at issue are unconstitutional and cannot be enforced to the detriment of TRWD, as
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well as an injunction prohibiting the defendants from enforcing those laws—is

clearly prospective. Indeed, the injunctive remedy is nearly identical to that

sought in Verizon Maryland. See Verizon Md., 535 U.S. at 645 (“The prayer for

injunctive relief—that state officials be restrained from enforcing an order in

contravention of controlling federal law—clearly satisfies our ‘straightforward

inquiry.’”). The request “for declaratory relief adds nothing to the prayer for

injunction” and therefore does not impact our analysis. See id. at 646. 

Because the impact on state sovereignty is not part of the analysis, the

defendants’ second point—that a decision in TRWD’s favor effectively will grant

the application—need not inform our analysis. The defendants argue, however,

that we must determine whether the relief requested “is prospective, not just in

how it is captioned but also in its substance.” Hill, 478 F.3d at 1259. They

contend that because a decision in TRWD’s favor will effectively grant TRWD’s

pending water application, that decision would be just as intrusive on the state as

a money judgment. See id. (characterizing the relief as prospective in part

because liability would “not impose upon the state ‘a monetary loss resulting

from a past breach of a legal duty on the part of the defendant state officials’”)

(italics omitted) (quoting Verizon Md., 535 U.S. at 646); see also Hill, 478 F.3d at

1260 (characterizing the relief as prospective in part because “[n]othing in [the]

suit calls to mind the sort of literal land grab effort made by the plaintiffs in

Coeur d’Alene with its consequent significant implications on the state fisc”). 
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The defendants’ argument appears to be based on two related premises: (1) that

the relief requested in this case makes the suit analogous to the quiet title action

in Coeur d’Alene, and (2) that invalidating the anti-export laws would encroach

on Oklahoma’s “ownership” interests in its natural resources, much like a

favorable judgment would have done in Coeur d’Alene.

To the extent it is even appropriate to draw comparisons to Coeur d’Alene

after Verizon Maryland’s instructions to conduct a “straightforward inquiry” into

the relief requested, we disagree with both premises. First, a favorable judgment

in this case would not entitle TRWD to appropriate Oklahoma water in the same

way that a quiet title action conclusively determines the parties’ rights to real

property. Rather, the judgment would only put TRWD on the same footing as instate applicants seeking water appropriations. TRWD’s application for water

would remain pending, and the defendants would have the discretion to determine

whether TRWD’s application meets other state statutory and regulatory standards. 

See, e.g., Okla. Stat. tit. 82, § 105.12 (listing factors the OWRB considers in

determining whether to issue a permit to appropriate water); see also Red River

Compact § 2.10, Pub. L. No. 96-564, 94 Stat. 3305 (1980) (“Nothing in this

Compact shall be deemed to . . . [i]nterfere with or impair the right or power of

any Signatory State to regulate within its boundaries the appropriation, use, and

control of water, or quality of water, not inconsistent with its obligations under

this Compact . . . .”). It is also well-established that Oklahoma does not enjoy an
5

This court has established a three-part test for determining when the

collateral-order doctrine applies, deriving from the Supreme Court’s decision in

Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 (1949). “To establish

jurisdiction under the collateral order doctrine, defendants must establish that the

district court’s order (1) conclusively determined the disputed question, (2)

resolved an important issue completely separate from the merits of the case, and

(continued...)

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“ownership interest” in water resources located in the state. See Sporhase v.

Nebraska, 458 U.S. 941, 950–52 (1982); see also City of El Paso v. Reynolds, 563

F. Supp. 379, 383 (D.N.M. 1983) (relying on Sporhase to reject a similar

Eleventh Amendment argument). Thus, we reject the argument that a favorable

judgment in this case would be similar to that sought in Coeur d’Alene. 

Because we conclude that the relief requested in this case is properly

characterized as prospective, both as captioned in TRWD’s complaint and in

substance, the defendants are not entitled to immunity under the Eleventh

Amendment.

C. Abstention

This court does not have jurisdiction to review interlocutorily the district

court’s decision not to abstain. A decision to abstain normally satisfies the

collateral-order doctrine and is therefore reviewable by interlocutory appeal. In

re Tri-Valley Distrib., Inc., 533 F.3d 1209, 1216 (10th Cir. 2008). This is so

because res judicata requires federal courts to honor any subsequent judgment of

the state court, which renders the abstention decision effectively unreviewable on

appeal. See In re Rupp & Bowman Co., 109 F.3d 237, 240 (5th Cir. 1997).5

 On
5

(...continued)

(3) is effectively unreviewable on appeal from a final judgment.” Crystal Clear

Communications, Inc. v. Southwestern Bell Tel. Co., 415 F.3d 1171, 1178 (10th

Cir. 2005). 

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the other hand, several courts have held that an order denying abstention is

reviewable after an entry of final judgment and, accordingly, is not immediately

appealable. RRI Realty Corp. v. Inc. Village of Southampton, 766 F.2d 63, 65 (2d

Cir. 1985); see also Summers v. Leis, 368 F.3d 881, 889 (6th Cir. 2004);

Confederated Salish v. Simonich, 29 F.3d 1398, 1403 (9th Cir. 1994); 15A

Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure,

§ 3914.14 (“Appealability presents no difficulty in such cases [involving

abstention orders]. Following the general rule, an order that dismisses the entire

action is final, and an order denying dismissal is not final.”). 

Although this Circuit has never directly held, we have expressed our doubt

that the denial of Younger abstention is appealable on interlocutory review. See

Robinson v. Kansas, 295 F.3d 1183, 1187 n.6 (10th Cir. 2002) (“It is not even

clear that we would have jurisdiction to consider a Younger claim such as that

presented in this case on interlocutory appeal.”). Today, we join those courts that

have so held and conclude that we do not have interlocutory jurisdiction under the

collateral-order doctrine to consider an appeal from the denial of a motion to

abstain under Younger because that decision is capable of effective review upon

entry of a final judgment in the case. After a final judgment, this court can
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determine whether the district court should have abstained. See Simonich, 29

F.3d at 1403 (noting that review of abstention after final judgment is not moot,

even though the district court has already heard the merits).

We also reject the defendants’ argument that this court should take pendant

jurisdiction over the abstention claim. The Supreme Court has stated that pendant

claims are appealable “if, and only if, they too fall within Cohen’s collateralorder exception to the final-judgment rule.” Abney v. United States, 431 U.S.

651, 663 (1977). By that formulation, this court does not have jurisdiction over

the abstention issue, because, as noted above, the abstention issue does not fall

within the Cohen collateral-order exception. On the other hand, the Supreme

Court has suggested that taking pendant jurisdiction over interlocutory appeals

might be appropriate in limited circumstances. See Swint v. Chambers County

Comm’n, 514 U.S. 35, 50–51 (1995) (“We need not definitively or preemptively

settle here whether or when it may be proper for a court of appeals, with

jurisdiction over one ruling, to review, conjunctively, related rulings that are not

themselves independently appealable.”).

This court has stated it will take pendant jurisdiction over an interlocutory

appeal only “where the otherwise nonappealable decision is ‘inextricably

intertwined’ with the appealable decision, or where review of the nonappealable

decision is ‘necessary to ensure meaningful review’ of the appealable one.” 

Timpanogos Tribe, 286 F.3d at 1200. In this case, the Eleventh Amendment
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immunity and Younger abstention issues are not “inextricably intertwined,” nor is

a review of Younger abstention necessary to a meaningful review of immunity. 

In our Eleventh Amendment immunity analysis, we focused on whether

Oklahoma’s sovereign immunity prevents a federal court from deciding whether

the Red River Compact preempts Oklahoma law. We can—and did—engage in

that analysis without addressing the issues related to Younger abstention, which

involve whether the federal action improperly interferes with a state judicial or

administrative proceeding. See Seneca-Cayuga Tribe of Okla. v. Okla. ex rel.

Thompson, 874 F.2d 709, 711 (10th Cir. 1989). Thus, we decline to exercise

pendant jurisdiction over the appeal of the refusal to abstain.

III. CONCLUSION

We hold first that there is a “case or controversy” that is ripe for

adjudication. We conclude that the defendants are not entitled to Eleventh

Amendment immunity, and therefore we AFFIRM the district court’s order on this

point. We do not have jurisdiction to consider the defendants’ appeal of the

district court’s refusal to abstain under Younger and therefore DISMISS that

portion of this appeal.