[00:00:00] Speaker 04: So we'll start with the first case. [00:00:02] Speaker 04: And if you would please state your appearance for the record. [00:00:06] Speaker 04: Thank you. [00:00:06] Speaker 04: Good morning. [00:00:07] Speaker 01: Good morning, Your Honors, and may it please the court. [00:00:09] Speaker 01: My name is Paul Bearden. [00:00:10] Speaker 01: I represent the appellant Mendocino Railway. [00:00:13] Speaker 01: And with the court's permission, I'd like to reserve three minutes of my time for rebuttal. [00:00:17] Speaker 04: OK. [00:00:18] Speaker 04: Hope that's aspirational, but hopefully that will occur. [00:00:20] Speaker 04: Thank you. [00:00:21] Speaker 01: Thank you. [00:00:22] Speaker 01: Colorado River is an exceedingly narrow doctrine that prohibits a stay or a dismissal except in exceptional circumstances. [00:00:31] Speaker 01: And absent these exceptional circumstances, the Supreme Court has made clear, it's admonished, that federal courts have a, quote, virtually unflagging obligation to exercise the jurisdiction given to them. [00:00:43] Speaker 01: Here, the district court erred in dismissing the federal action without there being exceptional circumstances. [00:00:49] Speaker 01: Significantly, most significantly in our view, it misapplied the threshold requirement that the state and federal actions be sufficiently parallel. [00:00:58] Speaker 01: Now, in fairness to the district court, it didn't have the benefit of this court's recent decision in Ernest Bach versus Steelman, which issued in August of last year. [00:01:07] Speaker 01: some three months or so after the district court's dismissal. [00:01:11] Speaker 01: And that decision clarified the rigorous standard in this circuit for meeting the threshold parallelism requirement. [00:01:19] Speaker 04: Okay, so my understanding of that is if you can chip away at that, then that particular factor of the Colorado River is a bar. [00:01:35] Speaker 04: at that point, but you mentioned, I think, the Coastal Zone Management Act consistency determinations. [00:01:45] Speaker 04: My question is, does your complaint allege a live controversy under the Coastal Zone Management Act, because that's what you're hanging your hat on to say it's inconsistent, right? [00:01:57] Speaker 01: Correct. [00:01:58] Speaker 01: And so our position is that our federal complaint is a comprehensive challenge, comprehensive challenge to the commissions and to the city's regulatory authority over the railroad. [00:02:10] Speaker 01: And we make that clear, and we think it does include the Coastal Zone Management Act authority. [00:02:14] Speaker 04: Do you specifically reference that, though? [00:02:17] Speaker 01: That is not specifically cited in the brief, but we make clear that we're after not just their permitting authority, which concerns the Coastal Act and the LCP, state and local law, [00:02:27] Speaker 01: but also any other pre-clearance authority. [00:02:31] Speaker 01: And we chose those words carefully because we're not just interested in their imposing land use permitting requirements on the railroad. [00:02:39] Speaker 01: We're interested in any and all sources of their authority to regulate from a land use perspective the railroad's rail activities in or outside the coastal zone, which is why in our prayer for relief, [00:02:51] Speaker 01: By the way, unlike the Coastal Commission's complaint in state court, our federal prayer for relief is very broad. [00:02:58] Speaker 01: It doesn't say we need a declaration concerning their permitting power under the Coastal Act or the LCP. [00:03:03] Speaker 01: It says broadly we need a declaration concerning their actions that interfere with the railroad's operations. [00:03:10] Speaker 02: But is the pre-clearance issue a theoretical concern? [00:03:14] Speaker 02: I understood the railroad activities in question here didn't involve anything federally funded or federally licensed with an agency. [00:03:24] Speaker 01: Judge Sanchez, it certainly is and has been in dispute as to whether the Coastal Commission can assert its Coastal Zone Management Authority. [00:03:32] Speaker 01: Act authority over the railroad. [00:03:35] Speaker 01: That is evidenced in part by... But my question is more specific. [00:03:39] Speaker 02: The Coastal Zone Management Act contemplates that the Coastal Commission can take part in a review of a federal application for license or something with a different federal agency. [00:03:51] Speaker 02: And I don't understand any of these activities here to involve interaction with a federal agency. [00:03:58] Speaker 02: Maybe that's why you didn't mention it in the federal complaint. [00:04:02] Speaker 01: The federal complaint, when it was filed in August 2022, was at the time, in terms of the factual background for the dispute, was focused on the most immediate issue, which was the Coastal Commission's claims that certain activities on the property, on the railroad property, required a land use permit under the Coastal Act and LCP. [00:04:21] Speaker 01: So the complaint's factual background description of [00:04:24] Speaker 01: What has led to this dispute is focused on that immediate urgency. [00:04:29] Speaker 01: But there's no question, as we indicated in documents that we submitted. [00:04:34] Speaker 02: But your federal complaint isn't separately alleging other activities, you know, that you're planning to file a license with an agency, with a surface transportation board. [00:04:45] Speaker 02: And we don't think you should have any, that the Coastal Commission should have any pre-clearance authority over that process. [00:04:52] Speaker 01: There aren't any specific activities mentioned, including, for example, the repair of a tunnel that would allow full freight service along the 40-mile line, which is currently in dispute. [00:05:06] Speaker 01: But generally, we argue that any and all railroad-related development improvements, et cetera, are preempted. [00:05:14] Speaker 04: But if assuming the state court addressed the issue of federal preemption, what part of your federal claim would remain? [00:05:25] Speaker 01: The part that would remain is the Coastal Commission's authority under the Coastal Zone Management Act. [00:05:30] Speaker 01: So the Coastal Commission, the city filed a complaint concerning the public utility status of the railroad. [00:05:36] Speaker 01: That doesn't concern federal preemption. [00:05:39] Speaker 01: The city wants a declaration that the railroad is no longer a public utility under California law. [00:05:44] Speaker 01: If we prevail there, what that means is that we've been declared a public utility, period. [00:05:50] Speaker 01: On the commission's complaint, the commission itself drafted its pleading very narrowly. [00:05:55] Speaker 01: It asked specifically for a declaration as to its Coastal Act and LCP authority. [00:06:01] Speaker 01: If we prevail as to the Coastal Commission in state court, what that means simply is that the railroad is not subject to [00:06:10] Speaker 01: the commission's Coastal Act authority. [00:06:12] Speaker 01: But it says nothing about this interplay between ICTA, the Interstate Commerce Commission Termination Act, a federal law, [00:06:20] Speaker 01: and the Coastal Zone Management Act. [00:06:22] Speaker 02: Let me ask you this, because the railroad's answer to the city's complaint also mentioned that there was a general preemption from federal law, and that from requiring the railroad to obtain state and local land use permits and other preclearance, [00:06:41] Speaker 02: which seems to be the same, encompasses the same thing as your federal complaint. [00:06:45] Speaker 02: So if it is true that the C, is it the CZMA that is contemplated in the federal complaint, why isn't it equally at issue in the state, in the state case that the state court could decide? [00:07:00] Speaker 01: Judge Sanchez, the reason is straightforward. [00:07:02] Speaker 01: That defense, that argument that was raised in Demer, and then again as an affirmative defense, that argument goes to the city's request for injunctive relief, which is limitless, basically. [00:07:16] Speaker 01: It says, court, please force the railroad to submit to the totality of the city's land use permitting and other authority. [00:07:26] Speaker 01: In response to that request for injunctive relief, if we ever get that far, which we don't think we will because we are confident it will prevail on the public utility issue, but if the court were to decide, for example, the railroad is not a public utility, then it will go to the question of, OK, [00:07:43] Speaker 01: Do we need to impose an injunction? [00:07:44] Speaker 01: And if so, to what extent? [00:07:47] Speaker 01: And it's to that piece of the complaint that a federal preemption argument was raised that if the court does reach that issue, if the court does reach the issue of an injunction, it will be cabined by Mendocino Railway's status as a federal railroad. [00:08:03] Speaker 01: But when you're talking about parallelism in the context of Colorado River, [00:08:10] Speaker 01: The court simply has to identify one outcome that would lead to further litigation. [00:08:15] Speaker 04: So on that state claim . [00:08:16] Speaker 04: . [00:08:16] Speaker 04: . [00:08:16] Speaker 04: But Bonk is a little . [00:08:18] Speaker 04: . [00:08:20] Speaker 04: . [00:08:20] Speaker 04: creates some tension with some of our other cases. [00:08:23] Speaker 04: So where exact parallelism wasn't required. [00:08:27] Speaker 04: So how do you answer that? [00:08:32] Speaker 01: I think what Bonk did was try to resolve some tension in certain panel decisions that came before it. [00:08:39] Speaker 01: And it concluded that requiring this, I think the language comes from a Supreme Court decision, Moses Cohn, where the Supreme Court there said it has to be a complete resolution. [00:08:53] Speaker 01: The state court action has to be a complete resolution of the federal action. [00:08:57] Speaker 01: And the panel in Bach relied on that language and said, OK, if you can identify an outcome [00:09:04] Speaker 01: in terms of a possible outcome in the state court action that would not resolve fully and completely the allegations in the federal complaint, then Colorado River doesn't apply. [00:09:15] Speaker 01: So Ernest Bobb was actually trying to be faithful. [00:09:18] Speaker 04: Well, I think a good lawyer could always speculate about some outcome that wouldn't be included. [00:09:23] Speaker 04: So speculation, I don't think it goes that far. [00:09:28] Speaker 01: Well, it's a possible outcome. [00:09:29] Speaker 01: And our position is that a possible outcome here is that we prevail against the city and the Coastal Commission as to their two complaints in state court. [00:09:38] Speaker 01: That's not speculative. [00:09:40] Speaker 01: That's a real possibility that we would prevail on those two complaints. [00:09:44] Speaker 01: And then the question becomes, what's left? [00:09:46] Speaker 01: Now, I think these issues about that you cited specifically in the complaints, that seems to be an issue better disposed of on a motion to dismiss, say, for [00:09:58] Speaker 01: absence of an actual controversy, but for purposes of Colorado River. [00:10:02] Speaker 01: We're not on a subject matter jurisdiction claim here. [00:10:05] Speaker 01: We're on a Colorado River claim. [00:10:07] Speaker 04: Well, let's say hypothetically that you lose on that. [00:10:10] Speaker 04: And I'm just saying it hypothetically. [00:10:12] Speaker 04: We haven't conferenced, and so I don't know what this panel's going to do. [00:10:16] Speaker 04: But hypothetically, let's say you lose on that. [00:10:19] Speaker 04: Are you contending that the district court erred in dismissing your case as opposed to staying it? [00:10:26] Speaker 01: That was not the focus of our opposition. [00:10:28] Speaker 01: We want a reinstatement, neither a stay or a dismissal. [00:10:33] Speaker 01: But it is true that it appears that precedents favor a stay over a dismissal under Colorado River because it is so rarely applied and used to defer to a state court proceeding. [00:10:46] Speaker 04: Let's say hypothetically that the panel also doesn't find persuasive your [00:10:54] Speaker 04: argument on parallelism and distinguishes Bach. [00:10:58] Speaker 04: Could you respond to why the railway isn't trying to game things by filing in federal court because it filed after the state court action and they had gotten an adverse? [00:11:12] Speaker 04: Because one of the Colorado factors is obviously forum shopping and trying to get a judge that you like better and a court that you like better. [00:11:20] Speaker 01: So we believe the chronology of events, the chronology of the various filings among the parties lead to only one conclusion, and that is that the railroad was simply exercising its right as a federal litigant to choose a federal forum for a comprehensive resolution of its federal preemption rights. [00:11:41] Speaker 01: Why do I say this? [00:11:42] Speaker 01: At the time the federal complaint was filed in August of 2022, [00:11:47] Speaker 01: There was only the state court action. [00:11:48] Speaker 01: The Coastal Commission was not a party to that action. [00:11:51] Speaker 01: So there was only a public utility state law claim at that time. [00:11:56] Speaker 01: The demur had been overruled primarily not on federal preemption grounds. [00:12:01] Speaker 01: The demur had been overruled on another argument that the state statute of the public utilities code did not give the superior court subject matter jurisdiction to decide. [00:12:09] Speaker 01: whether the railroad is a public utility. [00:12:12] Speaker 02: But it did deny the demurrer on preemption grounds, because if it had taken your arguments at face value, there would not have been a case, right? [00:12:21] Speaker 01: Not exactly so. [00:12:22] Speaker 01: We made the preemption argument via a motion to strike as to the injunctive relief request. [00:12:29] Speaker 01: Because as your honors know, a request for injunctive relief is not a cause of action. [00:12:34] Speaker 01: The trial court agreed with that. [00:12:37] Speaker 01: And so our attack was to the injunctive relief. [00:12:41] Speaker 01: And our point was that it's too broad. [00:12:43] Speaker 01: It runs up against the federal railroad's federal preemption rights. [00:12:46] Speaker 01: And the court, in its demurred ruling, it kind of combined all of its rulings in one document. [00:12:51] Speaker 01: It said, that's a fact-specific inquiry. [00:12:56] Speaker 01: If we get there, we'll decide that issue, say, on a dispositive motion or at trial. [00:13:00] Speaker 04: If we're getting down to you don't have too much time, would you like to reserve your time? [00:13:04] Speaker 01: I would like to reserve the remaining time. [00:13:06] Speaker 04: Unless either of my colleagues want to ask questions right now. [00:13:09] Speaker 04: Thank you. [00:13:09] Speaker 04: OK. [00:13:09] Speaker 04: Thank you, Mr. Beard. [00:13:21] Speaker 00: Good morning. [00:13:21] Speaker 00: Good morning. [00:13:23] Speaker 00: This is not accurate. [00:13:24] Speaker 00: It says Judge Cronstadt on it. [00:13:28] Speaker 00: All right. [00:13:29] Speaker 00: Good morning. [00:13:30] Speaker 04: Judge Cronstadt was here the last two days, so not today. [00:13:33] Speaker 00: Understood. [00:13:33] Speaker 00: Understood. [00:13:34] Speaker 00: Morning, Your Honors, and may it please the court, Patrick Tuck, Deputy Attorney General for Appellee Jack Gainsworth. [00:13:40] Speaker 00: I will be addressing Colorado River and Younger, and then I'll be ceding the remainder of the time to the Council for the City of Fort Bragg. [00:13:48] Speaker 00: To begin, this is a clear case of form shopping by Mendocino Railway. [00:13:52] Speaker 00: After losing on their demur and multiple adverse rulings in the state court action, they raised a federal court, filed a federal complaint that alleges multiple allegations that were also found in their defense, in their demur, as well as in their answer in state court. [00:14:07] Speaker 04: Well, before you get to Colorado, [00:14:08] Speaker 04: Certainly. [00:14:09] Speaker 04: I'd like you to just say, if hypothetically we find that there's a theoretical or a possibility of remaining federal litigation after the state proceedings are completed, does Ernest Bach, the case, require that we reverse the district court's grant of the state? [00:14:27] Speaker 00: In that hypothetical, yes. [00:14:29] Speaker 00: Yes, Your Honor. [00:14:29] Speaker 04: As Bach seems to stand for that proposition, Bach takes it out of the balancing. [00:14:34] Speaker 00: That is correct, Your Honor. [00:14:35] Speaker 00: And as you noted, Bach did go to the extreme on that, but it is the most recent decision. [00:14:40] Speaker 04: Well, since that would be dispositively against you, if that were the case, could you just reconcile how Bach, could you tell me why you've just heard your friend on the other side say why there is a possibility something else would be left? [00:14:57] Speaker 04: Can you answer that? [00:14:58] Speaker 00: Yes, Your Honor. [00:14:59] Speaker 00: So the eighth factor speaks to resolving all issues between the parties. [00:15:05] Speaker 00: In this case, federal preemption is before the state court. [00:15:08] Speaker 00: I think we all understand that both in the demurrer, the answer, and in the commission's complaint intervention. [00:15:15] Speaker 00: And as far as the CZMA claim, there is no CZMA claim between the parties in either the state or federal court. [00:15:24] Speaker 00: As you noted, there's never been a mention of CZMA until this appeal, until the appellant's opening brief. [00:15:31] Speaker 00: And there is no right dispute on CZMA, as we noted. [00:15:35] Speaker 00: It's just simply very speculative and theoretical, and it would request an advisory opinion from the district court on potential future CZMA claims. [00:15:45] Speaker 02: There is no- So your view about Bach is that when it says if one possible outcome is continued federal litigation, are you arguing that the possible outcome has to be something a little more real and concrete and not completely [00:15:59] Speaker 02: the whims of an able counsel. [00:16:02] Speaker 00: Yes, your honor. [00:16:03] Speaker 00: I mean, that is exactly what we're saying. [00:16:05] Speaker 00: I mean, the district court has to understand what the claim may be. [00:16:10] Speaker 00: can't be this theoretical potential dispute that is just not right and not something that can be adjudicated by a court. [00:16:16] Speaker 04: Well, Bach had kind of A or B. There were alternatives. [00:16:20] Speaker 04: So this is a little more, I think, what your friend on the other side said, possible. [00:16:25] Speaker 04: And so you're saying there isn't a possible, anything left? [00:16:30] Speaker 00: Not under the allegations of the current complaint. [00:16:34] Speaker 00: I mean, again, there is no reference to CZMA. [00:16:37] Speaker 00: The pre-clearance language, the vague pre-clearance language that is referenced, I mean, that comes from other cases discussing preemption. [00:16:45] Speaker 00: The railroad didn't put it in their complaint to [00:16:49] Speaker 00: to address a CZMA claim, it's just more, this is one of the categories that have been preempted in the past in BNSF and Friends of Yale River, they discuss pre-clearance. [00:16:58] Speaker 00: So clearly that's where that language came from and that's the only reason it's in there. [00:17:01] Speaker 00: And they've been using it since 2022 in the state court action and now in the federal action. [00:17:08] Speaker 00: And it's too vague to read a CZMA claim into it. [00:17:15] Speaker 00: So I'll go to some of the other factors in Colorado River. [00:17:19] Speaker 00: Again, clear form shopping by the railway. [00:17:24] Speaker 00: They're trying to avoid adverse rulings. [00:17:27] Speaker 00: They're trying to get away from the state court action. [00:17:30] Speaker 00: They've done that multiple times with trying to disqualify the judge, with trying to relate the case and then transfer to another judge. [00:17:37] Speaker 00: We discussed this all in our brief, but I just wanted to note that it's clearly form shopping on that side. [00:17:45] Speaker 00: As to the third factor, the piecemeal litigation, this does have a strong possibility of differing results and duplication of efforts and wasted judicial resources, which we think is a substantial factor as the district court found. [00:17:58] Speaker 02: Several of our cases have said that there needs to be something more, a special interest or a federal interest, because every piecemeal litigation has that same risk that you just presented. [00:18:11] Speaker 02: So what makes this case unique? [00:18:12] Speaker 00: Well, in this case, there are no other issues. [00:18:15] Speaker 00: It would only be a duplication. [00:18:16] Speaker 00: It's a federal preemption claim in federal court. [00:18:20] Speaker 00: The state court has the same federal preemption claim. [00:18:22] Speaker 00: So the only thing that would happen would be a duplication of litigation and resources. [00:18:29] Speaker 04: What's the status of the state court action now? [00:18:32] Speaker 00: It's we have a trial date and in October and we And we've started discovery so we've exchanged some written discovery So we are moving forward with that so that that would also go to the fourth factor and under Colorado River It is is is much further along than this federal court action obviously as that's just the complaint and the dismissal at this point Okay [00:18:56] Speaker 00: I'll jump to younger abstention unless there are further questions. [00:18:59] Speaker 04: Yeah, I have a question about that. [00:19:00] Speaker 04: Can we consider the commission's complaint in our analysis under younger, even if that complaint was not yet filed at the time the federal complaint was filed? [00:19:11] Speaker 04: I know you argued that younger, but it's not getting a lot of traction with me. [00:19:17] Speaker 04: I'm just speaking for myself here. [00:19:18] Speaker 00: Certainly, Your Honor. [00:19:20] Speaker 00: Well, the Hicks v. Miranda case, the U.S. [00:19:23] Speaker 00: Supreme Court case, 422 U.S. [00:19:26] Speaker 00: 332, does say that the filing dates are not dispositive. [00:19:31] Speaker 00: I mean, it's not a dispositive. [00:19:32] Speaker 00: It seems to be an open question. [00:19:34] Speaker 00: But even if you're just looking at the city's complaint, we would argue that that's a quasi-criminal complaint that would fall under the Herrera, Huffman, and other nuisance cases. [00:19:45] Speaker 00: And so it's up to you, your honor, if you feel that the way to go is to look just at the state's complaint, but we believe you can also consider the complaint intervention of the commission under that same rubric. [00:19:58] Speaker 00: So yes, so we do think it would qualify as a quasi-criminal case under Younger. [00:20:04] Speaker 00: And it was ongoing because the city's complaint was filed well before the federal complaint And as far as the compelling state interest we didn't get a chance to address this this argument in the Railways reply, but they're trying to say that if there's threshold federal issues There can't be a compelling state interest. [00:20:21] Speaker 00: We disagree the I mean the multiple cases shown that the [00:20:27] Speaker 00: Preserving the coastal zone is an important state interest. [00:20:30] Speaker 00: And the cases cited by the railway are tribal law cases. [00:20:34] Speaker 00: And the concern there was that the state court could not actually bring a prosecution under tribal law against the tribal companies and other Native Americans in their court. [00:20:47] Speaker 00: So you couldn't have a compelling state interest when they can't bring an actual case. [00:20:51] Speaker 04: So if the railway wins, [00:20:56] Speaker 04: on the preemption issue. [00:20:57] Speaker 04: Is this case over? [00:20:58] Speaker 00: The railway wins on the preemption issue. [00:21:01] Speaker 04: In state court. [00:21:02] Speaker 00: Is it over? [00:21:04] Speaker 00: The federal preemption win is, I'm sorry, I think I need to expand the hypothetical. [00:21:10] Speaker 00: So we're saying you're reinstating the federal and then we would win on? [00:21:14] Speaker 04: Well, if they're saying there's something left in state court, that this isn't going to handle everything. [00:21:24] Speaker 04: But if they win on the federal preemption issue, is the case over? [00:21:30] Speaker 00: I would say so, yeah. [00:21:31] Speaker 00: I mean, if the state court finds that the authority of both the city and the coastal commission is preempted under federal law broadly, then yes, I would say they would win there, but we don't believe that that's the case. [00:21:46] Speaker 04: Well, I know you're not conceding the issue, but it would seem to be, if you say that it's not over, then that would seem inconsistent with the parallelism argument to me. [00:21:59] Speaker 00: Well, we're just saying that the state court's going to resolve all issues no matter what. [00:22:03] Speaker 00: At this point, the state court is going to have to address federal preemption because it's affirmatively posed by the complaint intervention as well as the defenses from the railway. [00:22:14] Speaker 00: So if we're talking about that eighth factor, then the state court will resolve all issues [00:22:19] Speaker 00: regardless. [00:22:22] Speaker 02: Do you do you agree with counsel's sequence that the state court would resolve whether it's public utility first and then deal with preemption or I mean in other words is there a possibility that the state court could reach the utility question and never reach preemption? [00:22:39] Speaker 00: I seem almost out of time. [00:22:40] Speaker 00: I'll answer your question. [00:22:42] Speaker 00: No, because especially with the complaint intervention now posed, it raises federal preemption. [00:22:48] Speaker 00: It asks the court to rule on whether the Coastal Commission is federally preempted as well as state preemption. [00:22:56] Speaker 00: So if it's not to be a public utility, then they would move on to federal preemption as to the city's case as well as the commission's case. [00:23:08] Speaker 00: And if it's found to be a public utility, that may defeat the city's case, but they would still need to address federal preemption as to the complaint intervention in the state court action. [00:23:20] Speaker 02: All right. [00:23:21] Speaker 00: Your time's expired. [00:23:22] Speaker 00: Yes, thank you. [00:23:23] Speaker 04: I'll yield to the state court. [00:23:26] Speaker 04: We'll hear from Ms. [00:23:27] Speaker 04: McNevengy. [00:23:35] Speaker 03: Good morning. [00:23:35] Speaker 03: Good morning. [00:23:36] Speaker 03: May it please the court? [00:23:37] Speaker 03: Krista McNevangie for the City of Fort Bragg. [00:23:43] Speaker 03: So I think one of the kind of overarching issues here is with the district court's consideration of the actual kind of facts of what was going on in the case and the complaints that were in front of the state court. [00:24:00] Speaker 03: and the timing of all of the activities that were happening in the litigation case. [00:24:05] Speaker 03: So one of the primary factors that the court focused on, I think, was the foreign shopping issue. [00:24:13] Speaker 04: Well, on that issue, in support of the foreign shopping argument, you note that the railway sought to have the state court judge removed from the case. [00:24:22] Speaker 04: Was there a valid basis for that request, given a possible conflict of interest? [00:24:26] Speaker 04: in that the judge had pending coastal development permits? [00:24:32] Speaker 04: It doesn't seem like it was just coming out of the blue. [00:24:35] Speaker 03: No, although the timing of a lot of these actions were kind of key points in the case, I'm not suggesting that there wasn't a valid basis for any of them. [00:24:48] Speaker 03: There were obviously presentable arguments, legal arguments that could be made, but when you take them all together and the timing of some of them, [00:24:56] Speaker 03: It's just pretty coincidental and it seems clear, I think, to the district court that also by the complaint itself, what Mendocino Railway was trying to do. [00:25:10] Speaker 04: Well, it seems like though, if the judge had pending coastal development permits, if a lawyer didn't try to get into that, their client would accuse them of not doing the job. [00:25:24] Speaker 04: But you're putting that into the whole pot of why the railway is playing games. [00:25:30] Speaker 03: Right, right. [00:25:31] Speaker 03: And it's a lot of the timing of things and the repeated attempts to be in another court or be in front of another judge. [00:25:40] Speaker 03: And as I said, not to say that they were necessarily completely frivolous. [00:25:47] Speaker 03: Well, I mean, lawyers are entitled to have a fair judge that's not conflicted. [00:25:51] Speaker 03: Yes. [00:25:51] Speaker 03: And probably so. [00:25:52] Speaker 03: I mean, ultimately, the finding was that there was not an issue. [00:25:55] Speaker 03: And that was done by an independent judge that was assigned to that issue. [00:25:59] Speaker 03: So there wasn't at least any found to be any merit to it, not that it was not presented. [00:26:08] Speaker 03: I don't think we're suggesting that these things are solely done to delay the case or anything like that. [00:26:13] Speaker 04: So if we take that out of the pot, do you still have a good claim under the forum shopping factor? [00:26:21] Speaker 03: Well, the point is that the case that was originally filed by the city, it does delineate specific events that were code enforcement, building and safety, health and safety, [00:26:35] Speaker 03: specific attempts that they had made to inspect the property, give a red tag to stop activities from going on without permitting. [00:26:49] Speaker 03: Those are all kinds of enforcement actions. [00:26:51] Speaker 03: The city brings the action. [00:26:53] Speaker 03: And some of the key things in trying to have it related to the other case, [00:27:01] Speaker 03: and moved over to another department. [00:27:03] Speaker 03: All of that was after this ruling by Judge Brennan in the state court. [00:27:11] Speaker 03: Most definitely, in his order, he refers to preemption. [00:27:15] Speaker 03: It is not just the order about the motion to strike. [00:27:17] Speaker 03: It is also the order for the demurrer. [00:27:20] Speaker 03: The preemption issues were originally [00:27:23] Speaker 03: set forth by Mendocino Railway in their demur that was first filed, in their answer, even in their answer to the commissions. [00:27:33] Speaker 03: This same pre-clearance language was always in there. [00:27:36] Speaker 03: They never raised any CZMA issue with the district court. [00:27:42] Speaker 03: That wasn't raised until now. [00:27:43] Speaker 03: I think it sort of is an after the fact trying to save the federal action. [00:27:49] Speaker 03: I think the federal action, that's what the district court was looking at really, was that the federal action was just a mirror image [00:27:56] Speaker 03: of the state court action, and they literally filed this knowing that the Coastal Commission was contemplating filing or about to file a request to intervene. [00:28:11] Speaker 03: Even though the date [00:28:13] Speaker 03: repeatedly, they tried to assert that their federal action preceded the Coastal Commission's complaint and intervention, which is technically true when you look just at the filing dates, but I think the district court properly did not just look at the filing dates. [00:28:27] Speaker 03: It looked at what was kind of overall going on in the case, and they tried to remove the state court action. [00:28:35] Speaker 03: So, it's delayed the case a lot because of all these activities. [00:28:40] Speaker 03: Again, I'm not suggesting that they were necessarily legally improper, but they seek substantive review with the state court, the court of appeal, the supreme court. [00:28:53] Speaker 03: When all of that is exhausted, they try to get it related to another case, so it's transferred to a different [00:29:00] Speaker 03: Division of the County Court, so it's going to be before a different judge So all of these things are kind of going on and I think that that is you know I just think it was a strong factor probably for the district court was the forum shopping issue and And the the issues when you look at the bear complaint Don't look any different again. [00:29:20] Speaker 03: It's a mirror image of the city's complaint [00:29:23] Speaker 03: and then the Coastal Commission. [00:29:26] Speaker 03: And I think the fact that the Coastal Commission went into a little bit more of the penalties and exemplary damages and things like that, the core issue, and so I think younger still applies, is civil enforcement. [00:29:41] Speaker 03: The city is trying to enforce its building permit and building safety and those kinds of requirements, [00:29:48] Speaker 03: It did it by a declaratory relief and injunctive relief action as opposed to penalties, but that doesn't make it any less of a civil enforcement. [00:29:55] Speaker 03: So I really think both of the abstention doctrines apply. [00:29:59] Speaker 03: And then also, there's a problem with the fact that they have brought a declaratory relief claim, which is just their defense of preemption, trying to assert it as a federal claim. [00:30:13] Speaker 04: All right. [00:30:13] Speaker 04: Unless there are questions of the panel, your time's expired. [00:30:16] Speaker 04: Yes. [00:30:17] Speaker 03: Thank you. [00:30:17] Speaker 04: Thank you for your argument. [00:30:23] Speaker 01: I'll try to quickly go over a few points. [00:30:26] Speaker 01: As to the question of whether there's an actual controversy concerning the Coastal Zone Management Act, I would encourage the court to look at the exhibits that we've submitted with our request for judicial notice, which puts the lie to the idea that this is some speculative new thing in those documents. [00:30:40] Speaker 05: But you didn't ask for that in your complaint, so how are we supposed to take that? [00:30:45] Speaker 05: You've asked for some broad relief in your complaint. [00:30:49] Speaker 01: Yes. [00:30:49] Speaker 05: Comprehensive relief. [00:30:50] Speaker 05: What is the live controversy? [00:30:52] Speaker 01: The live controversy is that the commission and the city are trying to impose pre-clearance requirements on the railroad for their railroad activity. [00:31:01] Speaker 05: And where is that in your complaint? [00:31:03] Speaker 01: It's in our prayer for relief. [00:31:04] Speaker 01: It's throughout. [00:31:04] Speaker 05: It's in our prayer for relief, you just say. [00:31:07] Speaker 05: We're asking for broad relief. [00:31:10] Speaker 05: My only question is, I mean, [00:31:14] Speaker 05: It's difficult for me to see how pre-clearance is obviously an issue raised in your complaint. [00:31:20] Speaker 01: Other than the fact that we state clearly it's permitting and other pre-clearance activity. [00:31:25] Speaker 01: I know, other. [00:31:26] Speaker 01: Right, and the City and the Commission have never explained what other kind of pre-clearance authority does the Commission have. [00:31:34] Speaker 01: According to them in their state complaint, as narrowly pled, they only have Coastal Act and LCP authority, presumably. [00:31:40] Speaker 01: But that's not the case. [00:31:41] Speaker 01: The commission agrees that it has Coastal Zone Management Act authority. [00:31:45] Speaker 01: And in fact, as early as 2019, the commission said, even if our permitting authority is federally preempted, [00:31:59] Speaker 01: Quote, the ICTA does not preempt the commission's jurisdiction pursuant to the Coastal Zone Management Act. [00:32:05] Speaker 01: That's exhibit two of our request. [00:32:07] Speaker 01: So there is a live controversy. [00:32:09] Speaker 01: Our complaint is very broadly pleaded, and we think that it can fairly encompass all authority, all sources of power by the Coastal Commission and the city. [00:32:20] Speaker 01: And I see that I'm running out of time. [00:32:21] Speaker 01: So because Colorado River does require exceptional circumstances, and we don't think these actions are parallel, [00:32:28] Speaker 01: The court needn't even balance the remaining factors and the court should reverse and reinstate the action. [00:32:34] Speaker 01: Thank you. [00:32:34] Speaker 04: All right. [00:32:35] Speaker 04: Thank you both for your argument to this court. [00:32:37] Speaker 04: This matter will stand submitted.