Natural Resources Defense Council v. California DOT/Concurrence O'Scannlain

O'SCANNLAIN, Circuit Judge, specially concurring; Judge Kleinfeld joining:

I concur in Judge Hall's opinion because it accurately reflects the state of Ninth Circuit law. Our decision in this case is compelled by the two holdings of this court in ''Almond Hill Sch. v. United States Dep't of Agriculture, 768 F.2d 1030 (9th Cir. 1985) (holding Eleventh Amendment does not bar action against state officials to enforce a federal statutory right); and Coeur D'Alene Tribe of Idaho v. Idaho,'' 42 F.3d 1244 (9th Cir. 1994) (holding Eleventh Amendment does not bar a claim for injunctive relief against state officials seeking to preclude future violations of federal law).

Nevertheless, I want to express my concern about the persistent erosion of the Eleventh Amendment by expanding judicial exceptions within this circuit. In my view, we took a wrong turn in Almond Hill, which Coeur D'Alene follows. It is reassuring, therefore, to learn that the Supreme Court of the United States, having granted certiorari in Coeur D'Alene, has scheduled oral argument for mid-October. Whatever the result of the Supreme Court's review, its timely attention to the delicate interaction between the federal and state governments in the context of the Eleventh Amendment will be most welcome.