___________

No. 96-2705

___________

In re: SDDS, Inc., a South *

Dakota Corporation, * Petition for Writ

* of Mandamus

Petitioner. *

___________

 Submitted: August 26, 1996

 Filed: October 3, 1996

___________

Before MAGILL, JOHN R. GIBSON, and BEAM, Circuit Judges.

___________

MAGILL, Circuit Judge.

South Dakota Disposal Systems, Inc. (SDDS) moved the district court

to enjoin the State of South Dakota and various state officials in their

official capacities, including Mark W. Barnett, Attorney General of the

State of South Dakota, Walter D. Miller, Governor of the State of South

Dakota, and Joyce Hazeltine, Secretary of the State of South Dakota

(Defendants) from relitigating in the South Dakota state courts certain

issues previously decided by this Court. The district court denied this

motion, and SDDS now petitions this Court for a writ of mandamus, directing

the district court to issue the injunction. Defendants object, arguing

that this relief is improper under both the Eleventh Amendment and the

Anti-Injunction Act, 28 U.S.C. § 2283. We disagree, and conclude that

injunctive relief is proper in the circumstances of this case. Construing

SDDS's petition as an appeal of the district court's denial of injunctive

relief, we reverse. 
 This is, of course, not a complete list of prior judicial 1

recitations of the facts of this case.

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I.

On the last occasion during which these parties were before us, we

stated that it was "the latest in a seemingly never-ending series of cases

arising from SDDS's six-year-long struggle to develop a large-scale

[multistate solid waste disposal, or MSWD] facility near Edgemont, South

Dakota." SDDS, Inc. v. State of S.D., 47 F.3d 263, 265 (8th Cir. 1995)

(SDDS VI). This description was unfortunately prescient; one-and-a-half

years after penning those words, litigation continues in both state and

federal courts concerning SDDS's efforts to construct and operate the MSWD

facility. In this latest incarnation of the case, we are called upon to

determine if the Defendants are attempting to relitigate issues decided

previously by this Court and, if so, whether the Defendants should be

enjoined from attempting such relitigation.

The facts of this case have been stated and restated by a variety of

courts; see SDDS VI, 47 F.3d at 265-67; SDDS, Inc. v. State of S.D., 994

F.2d 486, 488-91 (8th Cir. 1993) (SDDS III); SDDS, Inc. v. State of S.D.,

843 F. Supp. 546, 548-52 (D.S.D. 1994) (SDDS V), rev'd, SDDS VI, 47 F.3d

at 265; Matter of 1990 Renewal Application of SDDS, 507 N.W.2d 702, 702-03

(S.D. 1993) (SDDS IV); SDDS, Inc. v. State, 481 N.W.2d 270, 271-72 (S.D.

1992) (SDDS II); Matter of SDDS, Inc., 472 N.W.2d 502, 504-06 (S.D. 1991)

(SDDS I); SDDS, Inc. v. State of S.D., Civil Case No. 93-324 (S.D. 6th Jud.

Cir. Ct. Jan. 17, 1996) (SDDS VII), and only a brief summary need be

1

provided here. SDDS purchased land in Fall River County, South Dakota, in

1988, with the intention of constructing the "Lonetree" facility, an MSWD

site. In 1989, SDDS was successful in obtaining from the South Dakota

Board of Minerals and Environment (Board) a one-year permit to site,

construct, and operate the MSWD facility. In 1990, the Board granted SDDS

a five-year renewal of its permit. 
 Under South Dakota law, an aggrieved party may appeal an 2

adverse administrative decision to the state courts. See SDCL 1-

26-30. "'A final determination of an agency decision is reached

when the reviewing court, after deciding the correctness of the

matter on review, affirms the decision or remands it to the

agency for reconsideration and a decision in accord with that

court's directive.'" Matter of Exploration Permit Renewal, Etc.,

323 N.W.2d 858, 860 (S.D. 1982) (quoting Matter of Silver King

Mines, Permit EX-5, 315 N.W.2d, 689, 693 (S.D. 1982) (Morgan, J.,

dissenting)).

 It does not appear that any South Dakota state court has 3

addressed the merits of the Board's 1991 findings that the MSWD

facility was environmentally safe and in the public interest. 

Rather, upon judicial review, the case was remanded to the Board

"for the opportunity to reissue Original Permit" because the

original permits had been invalidated. See Br. in Support of

Resp't's Answer at 4. SDDS never received reissued permits. 

-3-

Both permits were challenged in South Dakota state courts. In SDDS I, the 2

South Dakota Supreme Court ruled that the one-year permit was invalid

because the Board had made insufficient findings of fact. See id., 472

N.W.2d at 513. In SDDS IV, the South Dakota Supreme Court held that,

because the one-year permit had been declared invalid, the five-year

renewal was void ab initio. See id., 507 N.W.2d at 704. In 1991, on

remand after SDDS I, the Board made the required specified findings that

the proposed MSWD facility was environmentally safe and was in the public

interest. See SDDS VI, 47 F.3d at 265 n.5 (detailing subsequent

administrative history).3

During the course of the litigation over the Board's initial grant

of permits to SDDS, the South Dakota electorate decided two ballot

initiatives. The first, Initiative Measure No. 1, was approved in 1990,

and required legislative approval of large-scale solid waste disposal

sites. SDDS unsuccessfully challenged Initiative Measure No. 1 in the

South Dakota trial court, see SDDS, Inc. v. State of S.D., Civil Case No.

90-412 (S.D. 6th Cir. Ct. Oct. 31, 1991), and did not appeal to the South

Dakota Supreme Court. The South Dakota legislature approved SDDS's MSWD

site by
 At the time the referendum was decided by the South Dakota 4

voters, SDDS was still operating under its five-year renewal

permit. It was several years after the referendum placed "Senate

Bill 169 in limbo," SDDS IV, 507 N.W.2d at 703, long after SDDS

incurred its alleged injuries, that the South Dakota Supreme

Court declared SDDS's five-year renewal permit "void ab initio." 

Id. at 704. 

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passing 1991 Senate Bill 169. This bill was signed by the South Dakota

governor, and was to take effect on July 1, 1991. See SDDS II, 481 N.W.2d

at 272 (determining effective date of 1991 Senate Bill 169). 

The other ballot initiative decided by the South Dakota electorate

was a referendum on Senate Bill 169, requiring voter approval of SDDS's

MSWD site. See SDDS VI, 47 F.3d at 266. The electorate vetoed the MSWD

facility, which "shut down" SDDS's completion of the Lonetree site. See

SDDS IV, 507 N.W.2d at 703. SDDS challenged the referendum measure in

4

federal court, arguing that it offended the dormant commerce clause. We

reversed the district court's grant of summary judgment to the defendants

twice, first holding that the unsuccessful challenge to Initiative Measure

No. 1 in the South Dakota trial court did not act to collaterally estop the

challenge to the referendum, see SDDS III, 994 F.2d at 494, and later

holding that the referendum violated the dormant commerce clause. See SDDS

VI, 47 F.3d at 272 (reversing SDDS V).

During the course of this wide ranging litigation, SDDS never opened

its proposed MSWD site. In 1994, it sold the land planned for the

development of the MSWD and went out of business. SDDS brought suit

against the Defendants in South Dakota state court to recover an alleged

$5.6 million dollar loss in development costs, arguing that the losses

resulted from an uncompensated "taking" by the Defendants through operation

of the unconstitutional referendum, in violation of the Fifth and

Fourteenth Amendments. The South Dakota state trial court granted summary

judgment to the Defendants, holding that SDDS had no property right in

operating an
 The district court stated: 5

On April 11, 1996, SDDS filed a motion for the issuance

of an order to show cause, for a speedy hearing, and

for a preliminary and a permanent injunction pursuant

to the Declaratory Judgments Act and the All Writs Act. 

The state defendants responded on May 6, 1996. SDDS

filed a reply on May 23, 1996. Essentially, SDDS's

claim for injunctive relief seeks to have this Court

enjoin a proceeding before the South Dakota Supreme

Court. This Court declines to take such action. 

Accordingly, having considered the matter, it is hereby

ORDERED that SDDS's motion for an order to show cause

and for injunctive relief (Docket #133) is denied.

SDDS, Inc. v. State of S.D., Civil No. 91-5121 (D.S.D. May 28,

1996), reprinted in I Appellant's App. at Tab 12.

-5-

MSWD site, and that the referendum was not a proximate cause of SDDS's

losses. See SDDS VII, Mem. Op. at 11, 18, 24-25. The appeal of SDDS VII

is pending before the South Dakota Supreme Court.

Contending that the Defendants were attempting to relitigate issues

decided by this Court in SDDS VI, SDDS sought an injunction in the federal

district court against the Defendants. The district court summarily denied

injunctive relief, and SDDS now petitions this Court for a writ of

5

mandamus. SDDS requests that we require the district court to issue an

injunction against the Defendants, forbidding them from relitigating in the

South Dakota state courts the issues of (1) whether SDDS had a legitimate

claim of entitlement to a permit to operate an MSWD, and (2) whether the

referendum was the proximate cause of SDDS's dissolution. The Defendants

object to the issuance of the writ, arguing that the standards for a writ

of mandamus have not been satisfied, that the Eleventh Amendment prohibits

this suit, that the Anti-Injunction Act forbids issuance of the writ, and

that injunctive relief is not warranted by the facts of the case. We

address each of these arguments in turn.
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II.

The issuance of a writ of mandamus "is a drastic remedy to be invoked

only in extraordinary situations," Melahn v. Pennock Ins., Inc., 965 F.2d

1497, 1501 (8th Cir. 1992) (quotations omitted), and may issue "only if a

petitioner is able to establish a clear and indisputable right to the

relief sought, the defendant has a nondiscretionary duty to honor that

right, and the petitioner has no other adequate alternative administrative

or judicial remedy." In re Lane, 801 F.2d 1040, 1042 (8th Cir. 1986)

(quotations and citations omitted). The Defendants argue that a writ of

mandamus is inappropriate to require a district court to issue an

injunction, because such relief is left to the discretion of the district

court. See id. ("Where a matter is committed to discretion, it cannot be

said that a litigant's right to a particular result is clear and

indisputable." (quotations and citations omitted)).

We need not reach the question of whether a writ of mandamus may

issue to correct a district court's abuse of discretion in denying

injunctive relief. A denial of an injunction is an immediately appealable

interlocutory order, see 28 U.S.C. § 1292(a)(1). Where the liberal

standards for notice of appeal have been met in a case, a petition for a

writ of mandamus may be construed as a notice of appeal from an immediately

appealable order by a district court. See United States v. Gundersen, 978

F.2d 580, 583-84 (10th Cir. 1992) (construing petition for mandamus as

notice of appeal, and citing cases); United States v. Green, 499 F.2d 538,

540 n.5 (D.C. Cir. 1974) (per curiam) (citing cases). Here, SDDS's

petition for mandamus "was the functional equivalent of a notice of appeal

[because] it fulfilled [Fed. R. App. P.] 3's requirements concerning

notice," Gundersen, 978 F.2d at 583 (analyzing Smith v. Berry, 502 U.S. 544

(1992)). SDDS's petition specified the party taking the appeal, designated

the district court order appealed from, and named the court to which the

appeal
-7-

was taken. See id.; see also Fed. R. App. P. 3(c). In all of the

circumstances of this case, therefore, we believe it is appropriate to

construe SDDS's petition for a writ of mandamus as a notice of appeal. 

III.

The Eleventh Amendment generally bars suits brought against the

states in federal courts. While the specific language of the Eleventh

Amendment refers only 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. amend. XI,

we have understood the Eleventh Amendment to stand not so much

for what it says, but for the presupposition which it confirms.

That presupposition, first observed over a century ago in Hans

v. Louisiana, 134 U.S. 1 (1890), has two parts: first, that

each State is a sovereign entity in our federal system; and

second, that it is inherent in the nature of sovereignty not to

be amenable to the suit of an individual without its consent.

For over a century we have reaffirmed that federal jurisdiction

over suits against unconsenting States was not contemplated by

the Constitution when establishing the judicial power of the

United States.

Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1122 (1996) (citations

and quotations omitted). The immunity recognized by the Eleventh Amendment

extends to both suits for monetary damages and those for declaratory or

injunctive relief; "The Eleventh Amendment does not exist solely in order

to prevent federal court judgments that must be paid out of a State's

treasury; it also serves to avoid the indignity of subjecting a State to

the coercive process of judicial tribunals at the instance of private

parties." Id. at 1124. South Dakota and its state officials sued in their

official capacities would, therefore, normally be immune from suit in the

federal courts.
-8-

In Ex parte Young, 209 U.S. 123 (1908), however, the Supreme Court

established a fundamental exception to the Eleventh Amendment's immunity

doctrine:

Ex parte Young recognized that suits may be brought in federal

court against state officials in their official capacities for

prospective injunctive relief to prevent future violations of

federal law. The doctrine of Ex parte Young is based on the

idea that the power of federal courts to enjoin continuing

violations of federal law is necessary to vindicate the federal

interest in assuring the supremacy of that law.

Fond Du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253, 255 (8th Cir.

1995) (quotations and citations omitted). See also Denke v. South Dakota

Dep't of Social Servs., 829 F.2d 688, 689 (8th Cir. 1987) ("Eleventh

amendment analysis is an area dominated by formalistic rules, often neither

intuitive nor strictly rational. However, over years of development,

important exceptions to state immunity from suit have been recognized which

allow citizens to vindicate rights infringed upon by state authorities.

Extremely important in this regard is the substantial exception to the

scope of the eleventh amendment represented by the case of Ex Parte Young,

209 U.S. 123 (1908)[,] and its progeny.").

Defendants did not contend that SDDS VI was improperly heard by this

Court in violation of the Eleventh Amendment, and we do not believe that

any such argument could have been successful. As a suit for prospective

declaratory relief from South Dakota's ongoing violation of the dormant

commerce clause, the Defendants could not have enjoyed immunity under the

Eleventh Amendment in SDDS VI. See Ex parte Young, 209 U.S. at 159 ("the

use of the name of the State to enforce an unconstitutional act to the

injury of complainants is a proceeding without the authority of and one

which does not affect the State in its sovereign or governmental

capacity").

 

The question presented is therefore whether the Defendants,
 Indeed, it is clear that this is precisely what the 6

Defendants in this case have attempted to do to our judgment in

SDDS VI almost from the moment the decision was filed. Upon our

remand of the case to the district court for a determination of

attorney's fees, the Defendants stated:

All that has been obtained for the Plaintiff[ in SDDS

VI], however, is a declaratory judgment that the

referendum was unconstitutional. The court of appeals

let stand this court's important rulings on the due

process and equal protection issues raised by

Plaintiffs.

Plaintiff has, in essence, obtained a judgment

which can do it no good. [FN2 In its response to

Defendants' submission on the "prevailing party" issue,

Plaintiff claims in a footnote that the ruling of the

court of appeals may have some application in the state

"inverse condemnation" case, but Plaintiff does not

explain how the court of appeals ruling on the commerce

clause issue can have any application to the inverse

condemnation case. Additionally, it is important to

note that the state courts could agree with this

court[']s ruling (which the court of appeals let stand)

that Plaintiff had no property interest which could be

unlawfully taken.] Plaintiff has in fact accomplished

nothing more than obtaining "the moral satisfaction of

knowing that a federal court concluded [its] rights had

been violated. . . . Farrar vs. Hobbey, [506 U.S. 103,

114] (1992), quoting Hewitt vs. Helms, 482 [U.S.] 755,

762 (1987). In these circumstances, a substantial

reduction in the amount awarded, or [no] award at all,

see Farrar, 506 U.S. at 115, is appropriate.

Resp. to Mot. to Determine Award of Att'ys' Fees & Costs & Req.

for Hr'g at 13-14, reprinted in I Appellant's App. at Tab 7

(ellipses in original). Contrary to the Defendants'

mischaracterizations of SDDS VI, we did not "let stand" any

-9-

who had been properly sued for declaratory relief in a prior suit, can now

assert Eleventh Amendment immunity from this suit for prospective

injunctive relief which seeks only to effectuate our earlier judgment. An

affirmative answer would allow these Defendants, and all future state

defendants, to effectively ignore judgments rendered in the federal courts,

generating needless relitigation in the state courts, and rendering our

judgments largely nugatory and advisory. This is an intolerable result, 6
portion of the district court decision in SDDS V; rather, we

reversed the district court, and

remanded the case to the district court "with instructions to

enter judgment in favor of SDDS." SDDS VI, 47 F.3d at 272.

Similarly, in opposing SDDS's requested injunctive relief in

the district court, the Defendants urged the district court to

disregard our decision in SDDS VI by stating that:

SDDS also argues that the Eighth Circuit decision is

binding precedent on the state courts. While the

United States Supreme Court has the authority to enter

decisions binding on the South Dakota Supreme Court,

the lower federal courts do not have such power.

State Defs.' Br. In Supp. of Resistance to Pl.'s Mot. for Order

to Show Cause & for Speedy Hr'g & for Prelim. & Permanent Inj. at

14, reprinted in I Appellant's App. at Tab 10. Contrary to the

Defendants' rather unique interpretation of federalism, the

judgments of this Court are, in fact, entitled to the same res

judicata and collateral estoppel effect in the South Dakota state

courts as judgments rendered by those courts. See, e.g., City of

Tacoma v. Tacoma Taxpayers, 357 U.S. 320, 334 (1958).

-10-

and
 The Defendants, citing Green v. Mansour, 474 U.S. 64 7

(1985), argue that the instant suit for injunctive relief is in

fact a "demand that this Court direct the South Dakota courts to

grant SDDS a monetary award to be paid from the South Dakota

state treasury." Br. In Supp. of Resp't's Answer at 13. We

disagree. Green was an action for declaratory relief for an

alleged past violation of constitutional rights; "the award of a

declaratory judgment in this situation would be useful in

resolving the dispute over the past lawfulness of respondent's

action only if it might be offered in state-court proceedings as

res judicata on the issue of liability, leaving to the state

courts only a form of accounting proceeding whereby damages or

restitution would be computed." Green, 474 U.S. at 73. By

contrast, the suit before us has been brought to effectuate our

judgment in SDDS VI, a "[r]emed[y] designed to end a continuing

violation of federal law [which was] necessary to vindicate the

federal interest in assuring the supremacy of that law." Id. at

68. 

-11-

one which is not, we believe, mandated by the Eleventh Amendment. We

therefore hold that the Eleventh Amendment does not bar a suit in the

federal court for injunctive relief to prohibit a state defendant from

relitigating in a state court issues previously decided in a federal

court.7
 In Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988), 8

the Supreme Court explained the purpose of the Anti-Injunction

Act:

The Act, which has existed in some form since 1793, see

Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 335, is a

necessary concomitant of the Framers' decision to

authorize, and Congress' decision to implement, a dual

system of federal and state courts. It represents

Congress' considered judgment as to how to balance the

tensions inherent in such a system. Prevention of

frequent federal court intervention is important to

make the dual system work effectively. By generally

barring such intervention, the Act forestalls the

inevitable friction between the state and federal

courts that ensues from the injunction of state

judicial proceedings by a federal court. Due in no

small part to the fundamental constitutional

independence of the States, Congress adopted a general

policy under which state proceedings should normally be

allowed to continue unimpaired by intervention of the

lower federal courts, with relief from error, if any,

through the state appellate courts and ultimately [the

United States Supreme Court].

(quotations and citations omitted).

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IV.

Embodying fundamental precepts of federalism and comity between

federal and state courts, the Anti-Injunction Act provides that:

A court of the United States may not grant an injunction to

stay proceedings in a State court except as expressly

authorized by Act of Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its judgments.

28 U.S.C. § 2283. The Supreme Court has "expressly rejected the view that 8

the anti-injunction statute merely states a flexible doctrine of comity,

and [has] made clear that the statute imposes an absolute ban upon the

issuance of a federal injunction against a pending state court proceeding,

in the absence of one of the recognized exceptions . . . ." Mitchum v.

Foster, 407 U.S. 225, 228-29 (1972) (citing Atlantic Coast Line R.R. v.

Locomotive
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Eng'rs, 398 U.S. 281, 286-87 (1970) (note omitted)).

 

Included in the Anti-Injunction Act are specific, enumerated

exceptions. These exceptions, which "are designed to ensure the

effectiveness and supremacy of federal law," Chick Kam Choo v. Exxon Corp.,

486 U.S. 140, 146 (1988), include the relitigation exception. This

exception

 

was designed to permit a federal court to prevent state

litigation of an issue that previously was presented to and

decided by the federal court. It is founded in the wellrecognized concepts of res judicata and collateral estoppel.

Id. at 147. See also NBA v. Minnesota Pro. Basketball, Ltd. Partnership,

56 F.3d 866, 871 (8th Cir. 1995) ("The legislative policy that permits a

federal court to enjoin state court action when a federal court has decided

a suit on its substantive merits has equal force when a critical underlying

issue unrelated to the substantive merits of the action has been litigated

to finality." (quotations and citations omitted)). As with all of the

statutory exceptions, the relitigation exception is "narrow and [is] not

to be enlarged by loose statutory construction." Chick Kam Choo, 486 U.S.

at 139 (quotations and citations omitted). 

We review de novo the applicability of the relitigation exception.

See NBA, 56 F.3d at 871. In order to enjoin a state court from

relitigating an issue, the issue must "actually have been decided by the

federal court." Chick Kam Choo, 486 U.S. at 148. To determine if this

strict and narrow prerequisite has been met, we must assess "the precise

state of the record and what the earlier federal order actually said; [we

may not] render a post hoc judgment as to what the order was intended to

say." Id. (citing Atlantic Coast, 398 U.S. at 290 (emphasis in original)).

In an extended discussion, the district court in SDDS V held
-14-

that SDDS had no protected property interest in operating an MSWD facility,

and that the referendum had no effect on SDDS's ability to operate an MSWD.

The district court stated:

Under South Dakota law, SDDS needs two things in order to

operate its Lonetree facility: (1) a valid permit and (2)

legislative approval from the South Dakota Legislature. See

SDCL 34A-6-1.4 to 34A-6-1.13 (solid waste disposal facilities

must obtain permits); and SDCL 34A-6-53 to 34A-6-56 (solid

waste disposal facilities handling in excess of 200,000 tons of

waste annually must get legislative approval for their

operations).

At the time of the Referendum in November 1992, SDDS's

one-year permit had expired. In any event, that one-year

permit was void because the [Board], in issuing the permit,

failed to make specific findings of fact that the Lonetree

facility was in the public interest and that the facility met

five specified environmental prerequisites.

Although the [Board] had issued SDDS a five-year renewal

permit and the Legislature had passed S.B. 169 approving the

operation of the Lonetree facility, the five-year permit was

invalid because it was based upon an invalid one-year permit.

The five-year renewal permit was void ab initio. In other

words, SDDS has never had a valid permit to operate the

Lonetree facility. Without a valid permit, SDDS has no

constitutionally protected property interest in operating the

facility. Both of SDDS's due process claims fail.

The Court notes that SDDS's remaining commerce clause and

equal protection claims rest solely on the effect of the

Referendum, the validity of the Initiated Measure having

already been decided by [the South Dakota state court].

Furthermore, because SDDS has never had a valid permit to

operate its Lonetree facility, S.B. 169 and the subsequent

Referendum "vetoing" that bill have no practical effect. By

the very unambiguous terms of the Initiated Measure,

legislative approval may only be granted to a facility that is

operational "pursuant to solid waste permit." SDCL 34A-6-53.

SDDS has never had a valid permit. The legislature cannot have

granted approval of the Lonetree facility if the facility had

no permit to operate. It logically follows that if the

legislature was not in a position to grant approval to the

Lonetree facility, then the enabling legislation (S.B. 169) was

of no effect. The Referendum would also be of no effect. If

the Referendum had no effect, the
 For example, the Defendants previously argued that South 9

Dakota's

laws regulating solid waste facilities have changed

since SDDS obtained its original 1989 permit. South

Dakota's solid waste regulations were entirely

rewritten in July of 1990, and have been amended once

before the November 1992 Referendum and once after. 

Appellee's Appendix G. Since the September 1991

findings issued by the Board were based on the original

1989 record, the September 1991 findings do not address

or consider these regulatory changes. The Board must

determine compliance with these new regulatory

requirements before a solid waste permit can issue;

this determination was never made and SDDS is therefore

not entitled to a permit.

Appellee's Br. in No. 94-1688, at 14-15, reprinted in I

Appellant's App. at Tab 2. See also id. at 41 ("More importantly

the Referendum's disapproval of Senate Bill 169 did not impact

SDDS's ability to accept out of state waste because SDDS could

not accept any waste, regardless of the source, until it obtained

new state solid waste permits." (emphasis in original)).

 For example, SDDS previously argued that 10

the procedural defect in the [Board's] original

decision --the lack of findings that resulted in the

remand in SDDS I--had been cured by the time of the

Referendum. . . . [O]n remand the [Board] entered

extensive findings responsive to the [South Dakota]

Supreme Court's mandate and concluded that SDDS had met

"all requirements" for the issuance of a solid waste

-15-

commerce clause and the equal protection clause are not

implicated.

SDDS V, 843 F. Supp. at 553-54 (citations and notations omitted).

The Defendants, in their brief to this Court in SDDS VI, argued

strenuously that we affirm these holdings. See Appellee's Br. in No. 94-

1688, at 10-17, 41, reprinted in part in I Appellant's App. at Tab 2.9

SDDS, of course, strongly urged that we reverse the district court on these

points. See Appellant's Reply Br. in No. 94-1688, at 2-10, reprinted in

I Appellant's App. at Tab 3.10
permit under the relevant laws and regulations of South

Dakota.

Appellant's Reply Br. in No. 94-1688, at 7, reprinted in

Appellant's App. at Tab 3 (note omitted). See also id. at 3

("[t]he State attempts to avoid the consequence of its admission

concerning the Referendum's 'practical effect,' by engaging in an

inventive but, unfortunately, distorted analysis of the state

court litigation").

 We note that these factual determinations by an 11

administrative agency must be given "great weight" by South

Dakota courts. See SDCL 1-26-36.

-16-

In SDDS VI, we reversed the district court's judgment. See 47 F.3d

at 272. In so doing, we explicitly accepted SDDS's arguments on both of

these contested issues, and we explicitly rejected the Defendants'

positions. Regarding the protected property interest in operating the

MSWD, we stated:

In 1991, S.D.Codified Laws § 34A-6-1.13 was amended and the

implementing regulations were rewritten. Although the ultimate

question of whether the facility was environmentally safe and

in the public interest remained the same, several factors

weighing into the agency's decision changed. On remand after

SDDS I, the agency made the specific findings required by its

revised regulations. The agency found the Lonetree facility to

be environmentally safe, using language that parallels the

applicable regulation. Appellant's App. at 117 (Finding # 52,

parallelling S.D.Admin.R. 74:27:17:01). The agency found the

facility to be in the public interest. Appellant's App. at 121

(Finding # 72). Both findings were preceded by numerous

supporting factual findings. The revised [Board] findings also

contain a specific legal conclusion that all requirements for

the permit had been met. Appellant's App. at 122 (Conclusions

of law # 3 & # 4).

SDDS VI, 47 F.3d at 265 n.5 (emphasis added). This determination that

11

all of the factual predicates and legal requirements for SDDS's permit had

been met was necessarily dispositive of SDDS's property interest in the

permit itself. See Littlefield v. City of Afton, 785 F.2d 596, 602 (8th

Cir. 1986) ("We hold that appellants have a property interest in the

building permit because they complied with all the legal requirements

contained in the
 In adopting the factual findings of the Board in SDDS VI,

12

we did not then--and need not now--address the issue of whether

those findings were entitled to claim preclusive effect. See

Astoria Federal Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 109-

10 (1991) ("Although administrative estoppel is favored as a

matter of general policy, its suitability may vary according to

the specific context of the rights at stake, the power of the

agency, and the relative adequacy of agency procedures."). Put

bluntly, here we are not concerned with determining the accuracy

of our decision in SDDS VI, but rather in insuring its

effectiveness. See, e.g., Moe v. Moe, 496 N.W.2d 593, 595 (S.D.

1993) (res judicata applies "whether the court was correct at the

time or not"). If the Defendants were dissatisfied with our

adjudication of their case in SDDS VI, their options were to

request rehearing by this Court en banc or to petition the United

States Supreme Court for a writ of certiorari. They may not,

however, collaterally challenge our decisions in the South Dakota

state courts. See City of Tacoma, 357 U.S. at 334.

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ordinances of the City of Afton. Appellants need not comply with illegal

conditions in order to have a property interest in the permit." (emphasis

in original)), holding limited in part on other grounds, Lemke v. Cass

County, Neb., 846 F.2d 469, 470-71 (8th Cir. 1987) (per curiam) (en banc)

(holding that "[w]hether a substantive due process claim may arise from a

denial of a zoning permit is an open question in this circuit and need not

be decided in this case").12

Regarding the effect of the referendum on SDDS, we stated in SDDS VI

that: 

Despite the fact that it has previously conceded that "[t]he

practical effect of the referendum was to prohibit the

construction" of the Lonetree facility, Appellant's App. at 39,

South Dakota now argues that because the [Board] permit had

been revoked, the referendum had no impact, discriminatory or

otherwise, on Lonetree. However, if this court were to ignore

South Dakota's intermediary actions and look only to the

result, it would reward South Dakota for acting

unconstitutionally. Moreover, the administrative permit was

voided due to a procedural defect, not because of any finding

that the Lonetree facility was environmentally dangerous.

Thus, Lonetree could reapply for the administrative permit, and

the referendum at the very least made the Lonetree
 Indeed, our ruling echoed that of the South Dakota Supreme 13

Court in SDDS IV, 507 N.W.2d at 703, which found that the

referendum "placed Senate Bill 169 in limbo and shut down the

[Lonetree] facility pending the outcome of the general election." 

See also SDDS III, 994 F.2d at 489 ("S.B. 169 was, therefore,

effectively vetoed by the citizens of South Dakota and the

Lonetree project has been unable to proceed since.").

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project more difficult and expensive to accomplish.

Id. at 270 n.10 (citations and quotations omitted).13

The issues which the Defendants now wish to relitigate in the state

courts were, therefore, actually and finally decided by this Court in SDDS

VI. Under South Dakota's rules of claim preclusion or collateral estoppel,

we conclude that this Court's decision in SDDS VI bars the Defendants from

relitigating these settled issues in subsequent litigation in the state

courts. See, e.g., Moe v. Moe, 496 N.W.2d 593, 595 (S.D. 1993):

[I]f the prior final judgment or order had been rendered by a

court of competent jurisdiction, it is conclusive as to all

rights, questions, or facts directly involved and actually, or

by necessary implication, determined therein, whether the court

was correct at the time or not.

We apply four factors to determine whether the doctrine

of [claim preclusion] bars this appeal: (1) whether the issue

decided in the former adjudication is identical with the

present issue; (2) whether there was a final judgment on the

merits; (3) whether the parties are identical; and (4) whether

there was a full and fair opportunity to litigate the issues in

the prior adjudication.

(citations and quotations omitted). See also Black Hills Novelty Co. v.

South Dakota Comm'n, 520 N.W.2d 70, 73 (S.D. 1994) (describing elements of

collateral estoppel). In this case, all of these elements have

unquestionably been met: the issues are the same, the parties are the same,

there was a final judgment on the
 Under the Full Faith and Credit Act, 28 U.S.C. § 1738, we 14

are bound by a state court's application of its res judicata

rules to our judgments. See Parsons Steel, Inc. v. First Ala.

Bank, 474 U.S. 518, 524 (1986):

We believe that the Anti-Injunction Act and the Full

Faith and Credit Act can be construed consistently,

simply by limiting the relitigation exception of the

Anti-Injunction Act to those situations in which the

state court has not yet ruled on the merits of the res

judicata issue. Once the state court has finally

rejected a claim of res judicata, then the Full Faith

and Credit Act becomes applicable and federal courts

must turn to state law to determine the preclusive

effect of the state court's decision.

Because the South Dakota trial court did not rule on the claim

preclusive effect of SDDS VI, see SDDS VII, Mem. Op. at 2 n.3, 5,

20-21, we are not precluded from protecting our judgment in SDDS

VI under the relitigation exception to the Anti-Injunction Act. 

See Daewoo Elecs. v. Western Auto Supply Co., 975 F.2d 474, 479

(8th Cir. 1992).

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merits in SDDS VI, and the record amply reveals that the Defendants were

not only given, but took every opportunity, to fully and fairly litigate

these issues before us. Because the Defendants are barred by claim

preclusion from relitigating the issues of (1) whether SDDS had a

legitimate claim of entitlement to a permit to operate an MSWD, and (2)

whether the referendum was the proximate cause of SDDS's dissolution, the

relitigation exception to the Anti-Injunction Act permits injunctive relief

to prevent them from so relitigating these issues in the South Dakota state

courts.14

V.

We recognize, however, that "[t]he fact that an injunction may issue

under the Anti-Injunction Act does not mean that it must issue. The

injunction must be an otherwise proper exercise of the [court's] equitable

power." Daewoo Elecs. v. Western Auto Supply Co., 975 F.2d 474, 478 (8th

Cir. 1992). We review the district court's denial of injunctive relief for

abuse of discretion. See Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

"Abuse of
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discretion occurs if the district court rests its conclusion on clearly

erroneous factual findings or if its decision relies on erroneous legal

conclusions." Hosna v. Groose, 80 F.3d 298, 303 (8th Cir. 1996)

(quotations and citations omitted), pet. for cert. filed, No. 95-9498 (June

28, 1996). See also Walser v. Toyota Motor Sales, U.S.A., Inc., 43 F.3d

396, 401 (8th Cir. 1994) ("We will not disturb a district court's

discretionary decision if that decision remains within the range of choice

available to the district court, accounts for all relevant factors, does

not rely on any irrelevant factors, and does not constitute a clear error

of judgment." (quotations and citations omitted)).

In analyzing SDDS's motion for injunctive relief, the district court

stated that:

Essentially, SDDS's claim for injunctive relief seeks to have

this Court enjoin a proceeding before the South Dakota Supreme

Court. This Court declines to take such action.

SDDS, Inc. v. State of S.D., Civil No. 91-5121 (D.S.D. May 28, 1996),

reprinted in I Appellant's App. at Tab 12. While this description

overstates the degree of relief requested by SDDS--which sought to enjoin

the relitigation of specific issues, rather than a blanket injunction of

all consideration of its dispute with the Defendants by the South Dakota

Supreme Court--it does represent a proper concern by the district court for

a core element of federalism, embodied by the Anti-Injunction Act, that the

federal courts should not interfere with the state courts' operation. See,

e.g., Southwest Airlines Co. v. Texas Int'l Airlines, 546 F.2d 84, 91 (5th

Cir. 1977) ("few public interests have a higher claim upon the discretion

of a federal chancellor than the avoidance of needless friction with state

policies" (analyzing abstention doctrine and Anti-Injunction Act) (quoting

Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500 (1941))), cert. denied,

434 U.S. 832 (1977); but see United States v. Rural Elec. Convenience CoOp.
 A petitioner seeking to enjoin a criminal or quasi- 15

criminal state court proceeding must demonstrate a threat of

"great and immediate irreparable injury that cannot be eliminated

by his defense to the state proceeding." Goodrich v. Supreme

Court of S.D., 511 F.2d 316, 317 (8th Cir. 1975) (refusing to

enjoin state court disbarment proceeding (citing Younger v.

Harris, 401 U.S. 37, 46 (1971))). Where a petitioner seeks to

enjoin a state court's civil proceeding, however, we have only

required a showing of "irreparable harm" to allow a grant of

injunctive relief. See Daewoo, 975 F.2d at 478 (analyzing

Goodrich).

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Co., 922 F.2d 429, 439 (7th Cir. 1991) ("we do not believe that comity and

federalism should be considered 'public interest' factors that militate

against the issuance of an injunction").

The district court's analysis fails, however, to consider the factors

which support the issuance of injunctive relief in this case. In Dataphase

Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc),

this Court held that:

Whether a preliminary injunction should issue involves

consideration of (1) the threat of irreparable harm to the

movant; (2) the state of the balance between this harm and the

injury that granting the injunction will inflict on other

parties litigant; (3) the probability that movant will succeed

on the merits; and (4) the public interest.

Applying the Dataphase factors to the case before us, we conclude that the

district court abused its discretion in denying injunctive relief.

Requiring SDDS to relitigate in the state court issues previously decided

by this Court constitutes an irreparable harm. See, e.g., Daewoo, 975 F.2d

at 478 (affirming district court's finding that petitioner "would suffer

irreparable harm if injunctive relief were not issued because it would face

relitigation of claims already adjudicated in its favor").15

While issuing the injunction in this case will foreclose the

opportunity for the Defendants to relitigate issues in the state court, we

do not believe that this is a legitimate harm which must
-22-

be balanced. As noted above, the Defendants had one full and fair

opportunity to litigate these issues in the federal forum, and the rules

of equity do not require that they be given a second bite at the apple in

the state forum in order to obtain a more favorable result. See, e.g.,

Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299 (1917) ("This

doctrine of res judicata is not a mere matter of practice or procedure

inherited from a more technical time than ours. It is a rule of

fundamental and substantial justice, of public policy and of private peace,

which should be cordially regarded and enforced by the courts to the end

that rights once established by the final judgment of a court of competent

jurisdiction shall be recognized by those who are bound by it in every way,

wherever the judgment is entitled to respect." (quotations and citation

omitted)).

The third and fourth Dataphase elements also support issuance of an

injunction in this case. As discussed above, SDDS successfully litigated

in SDDS VI the issues currently contested by the Defendants; SDDS's success

on the merits of the underlying issue is therefore already secured. In

addition, the public policy concerns of finality and repose informing our

res judicata jurisprudence strongly supports the protection of our previous

judgment. While the interference with a state court proceeding is

generally opposed by public policy, this "injunction will promote judicial

economy and protection of parties from harassing, duplicative litigation,

interests which the federal and state courts share." Daewoo, 975 F.2d at

479 (citation omitted).

We find no merit in the Defendants' remaining arguments opposing the

granting of injunctive relief. We therefore reverse the district court's

denial of injunctive relief in this case, and remand to the district court

for an order enjoining the Defendants from relitigating in the South Dakota

state courts the issues of (1) whether SDDS had a legitimate claim of

entitlement to a permit to operate an MSWD, and (2) whether the referendum

was the
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proximate cause of SDDS's dissolution.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.