                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JACOB W. BEENTJES,                    
                Plaintiff-Appellee,         No. 03-15598
               v.
                                             D.C. No.
                                          CV-00-01423-FCD
PLACER COUNTY AIR POLLUTION
CONTROL DISTRICT,                            OPINION
            Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Eastern District of California
       Frank C. Damrell, District Judge, Presiding

                   Argued and Submitted
         April 12, 2004—San Francisco, California

                  Filed February 4, 2005

    Before: Warren J. Ferguson, Stephen Reinhardt, and
             Richard A. Paez, Circuit Judges.

                  Opinion by Judge Paez




                           1541
1544 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL


                          COUNSEL

Mathew D. Evans, James B. Car, Duncan, Ball & Evans, Sac-
ramento, California, for the appellant.

Roderick P. Bushnell, Bushnell, Caplan & Fielding, LLP, San
Francisco, CA, and Linda J. Sloven, Nevada City, California,
for the appellee.


                           OPINION

PAEZ, Circuit Judge:

   The Placer County Air Pollution Control District (“the Dis-
trict”) is charged under state law with the responsibility of
enforcing state and national air quality standards within its
region. The District is part of the larger state and federal
scheme to meet air quality standards under the federal Clean
Air Act.

   Jacob W. Beentjes (“Beentjes”) was a former employee of
the District as an air pollution control specialist. This case
arose when the District terminated Beentjes after he was diag-
nosed with a serious pulmonary disease and efforts to accom-
modate his condition were unsuccessful. Beentjes sued the
District alleging that the District’s actions violated Title I of
the Americans with Disabilities Act. Beentjes sought damages
and injunctive relief.

   The District ultimately moved for summary judgment on
the ground that, as an arm of the state, it was entitled to sover-
eign immunity under the Eleventh Amendment. The district
      BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1545
court, employing the five-factor test that we adopted in Mitch-
ell v. Los Angeles Community College District, 861 F.2d 198,
201 (9th Cir. 1988), and reaffirmed in Belanger v. Madera
Unified School District, 963 F.2d 248, 250-51 (9th Cir. 1992),
determined that the District was not entitled to sovereign
immunity and denied the motion.

   In this interlocutory appeal, the District challenges the dis-
trict court’s ruling on the ground that the court failed to recog-
nize the District’s unique status as an enforcement agency
under California’s implementation plan for the federal Clean
Air Act. In failing to do so, the District argues that the court
misapplied the Mitchell/Belanger five-factor test. We have
jurisdiction over this interlocutory appeal under the “collateral
order doctrine,” see Savage v. Glendale Union High Sch., 343
F.3d 1036, 1040 (9th Cir. 2003), and we affirm. We hold that
the District is not an arm of the state and therefore is not enti-
tled to sovereign immunity under the Eleventh Amendment.

                                I.

   In 1992, Jacob W. Beentjes began working at the Placer
County Air Pollution Control District as an ex officio
employee on loan from Placer County. After being diagnosed
with chronic obstructive pulmonary disease in 1997, Beentjes
was terminated from his position as an air pollution control
specialist. He sought an accommodation under the Americans
with Disabilities Act (“ADA”), and was given another posi-
tion with Placer County. He later quit this position.

   Beentjes subsequently filed suit for damages and injunctive
relief against the District in the Eastern District of California,
alleging that the District discriminated against him on the
basis of his disability and that the District failed to reasonably
accommodate him, in violation of Title I of the ADA, 42
U.S.C. §§ 12101-12117. As noted above, the District moved
for summary judgment on the ground that it was an arm of the
state that qualified for Eleventh Amendment sovereign immu-
1546 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
nity. The court denied the motion. The District then moved
for reconsideration of the court’s ruling. The court denied the
motion for reconsideration, again ruling that the District was
not entitled to sovereign immunity. The District filed a timely
interlocutory appeal.

   We review de novo a district court’s ruling on a motion for
summary judgment. Holz v. Nenana City Pub. Sch. Dist., 347
F.3d 1176, 1179 (9th Cir. 2003). Although the District
appeals from the denial of its motion for reconsideration, a
ruling that we review for an abuse of discretion, the basis for
the ruling was the court’s determination that the District was
not entitled to sovereign immunity under the Eleventh
Amendment, which is a question of law that we review de
novo. See Savage, 343 F.3d at 1040.

                              II.

   [1] The Eleventh Amendment of the United States Consti-
tution provides that “[t]he Judicial power of the United States
shall not be construed to extend 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. “The ultimate guaran-
tee of the Eleventh Amendment is that nonconsenting States
may not be sued by private individuals in federal court.” Bd.
of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).

   [2] The Supreme Court has held that “the reference to
actions ‘against one of the United States’ encompasses not
only actions in which a State is actually named as the defen-
dant, but also certain actions against state agents and state
instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519
U.S. 425, 429 (1997); see also Holz, 347 F.3d at 1180. The
Court, however, has “consistently refused to construe the
Amendment to afford protection to political subdivisions such
as counties and municipalities, even though such entities exer-
cise a slice of state power.” Lake Country Estates, Inc. v.
        BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1547
Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979)
(internal quotation marks and citations omitted).

   [3] The decision to extend sovereign immunity to a public
entity turns on whether the entity “is to be treated as an arm
of the State partaking of the State’s Eleventh Amendment
immunity, or is instead to be treated as a municipal corpora-
tion or other political subdivision to which the Eleventh
Amendment does not extend.” Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 280 (1977). In the Ninth Cir-
cuit, we employ a five-factor test to determine whether an
entity is an arm of the state:

      [1] whether a money judgment would be satisfied
      out of state funds, [2] whether the entity performs
      central governmental functions, [3] whether the
      entity may sue or be sued, [4] whether the entity has
      the power to take property in its own name or only
      the name of the state, and [5] the corporate status of
      the entity.

Belanger, 963 F.2d at 250-51 (quoting Mitchell, 861 F.2d at
201) (hereinafter “Mitchell test”).1 “We must examine these
factors in light of the way California law treats the govern-
mental agency.” Id. at 251.
  1
    The District suggests that this test is not suited for this case because the
school districts in Mitchell and Belanger are different from enforcement
agencies like air pollution control districts. The District, however, fails to
explain why an entity that performs an enforcement function defies analy-
sis under the Mitchell test. Mitchell itself held that the five factors should
be used to determine whether “a governmental agency is an arm of the
state,” 861 F.2d at 201 (emphasis added), and did not distinguish school
districts from entities with enforcement functions. Accordingly, we apply
the Mitchell test to the District’s claim of sovereign immunity.
1548 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
                        A.   State Funds

   [4] The first prong of the Mitchell test—whether a money
judgment would be satisfied out of state funds—is the pre-
dominant factor. Id. This factor is given additional weight
because “the impetus of the Eleventh Amendment is the pre-
vention of federal-court judgments that must be paid out of a
state’s treasury . . . .” Savage, 343 F.3d at 1041. Here, a
review of the applicable state law and the funding scheme for
air pollution control districts leads us to conclude that the
State is not responsible for paying a money judgment against
the District.

    [5] First, as a “local public entity” under California law, the
District, and not the State, must pay money judgments against
it. California Health & Safety Code § 40707 provides that all
claims for money damages against air pollution control dis-
tricts are governed by Parts 3 and 4 of Division 3.6 of the Cal-
ifornia Government Code, §§ 900-962, which pertain to
claims and actions against public entities. In turn, the defini-
tional provisions of Part 3 of Division 3.6 of the Government
Code (1) define a “local public entity” to include a “district,”
(2) distinguish a “local public entity” from “the State,” and
(3) specify that the “State” is responsible for paying money
judgments against the State. Cal. Gov’t Code § 900.4 (provid-
ing that a “local public entity” includes “a county, city, dis-
trict, public authority, public agency, and any other political
subdivision or public corporation in the State, but does not
include the State”) (emphasis added); id. § 900.6 (defining
“State” as “the State and any office, officer, department, divi-
sion, bureau, board, commission or agency of the State claims
against which are paid by warrants drawn by the Controller”)
(emphasis added). Taken together, these provisions establish
that under California law, local public entities, including air
pollution control districts, are responsible for paying their
own money judgments.

  This conclusion is bolstered by additional provisions of the
Government Code pertaining to the payment of judgments
       BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1549
against local public entities. See id. § 970 (“ ‘Local public
entity’ includes a county, city, district, public authority, pub-
lic agency, and any other political subdivision or public cor-
poration in the state, but does not include . . . the state or any
office, officer, department, division, bureau, board, commis-
sion or agency of the state claims against which are paid by
warrants drawn by the Controller.”) (emphasis added); id.
§ 970.2 (providing that “[a] local public entity shall pay any
judgment in the manner provided in this article” and giving a
judgment creditor the right to obtain a writ of mandate to
compel a local public entity to pay a judgment against it).

   Although the District does not dispute that it must pay a
judgment obtained against it, the District emphasizes that it
has two million dollars in liability insurance coverage that
would suffice to satisfy a judgment in this case. However, “it
is the entity’s potential legal liability, rather than its ability or
inability to require a third party to reimburse it, or to dis-
charge the liability in the first instance, that is relevant.”
Regents of the Univ. of Cal., 519 U.S. at 431.

   Nonetheless, the District claims that a money judgment
against it would be paid out of state funds because “state reve-
nue” constitutes a significant portion of the District’s annual
budget, from which it pays its insurance premiums. This
claim is misleading, however, because the bulk of the monies
demarcated as “state revenue” in the District’s annual budget
comes from a vehicle surcharge that does not actually repre-
sent state funds. Although this surcharge is collected by the
State through the Department of Motor Vehicles, see Cal.
Health & Safety Code § 44227, it is imposed at the discretion
of the District, levied against vehicles registered within the
District, and returned to the District to further its goal of
reducing air pollution. See id. §§ 40701.5(a)(5), 44223,
44229. The district court properly determined that the “state
vehicle surcharge” is more appropriately considered a local
tax.
1550 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
   Further, a former District officer testified that the next-
largest source of District revenue, the “Air Toxics ‘Hot Spots’
Information and Assessment Act,”2 is taken from local indus-
tries and therefore is not state funding. Taking these undis-
puted facts into account, between 1994 and 1999, local funds
accounted for the vast majority of the District’s annual bud-
get, while funds from the state treasury comprised no more
than 10% of its annual budget.

   The District, relying on Belanger, argues that local funds
that are commingled with (even a small amount of) state
funds should no longer be deemed local in nature. See
Belanger, 963 F.2d at 252 (holding that a judgment against a
school district would be satisfied from state funds). State
funds, however, comprised 75% of the school district’s bud-
get in Belanger, id. (“[T]he bulk of the school district’s bud-
get comes directly from the state school fund . . . .” ), whereas
here they accounted for only a small percentage of the Dis-
trict’s budget.

   In addition, in Belanger we emphasized that the State of
California exerts substantial control over the budgets of
school districts. For example, the State imposes a revenue
limit for each school district, determines the maximum
amount of funding each district receives (and spends on stu-
dents), and provides the necessary funds. Id. Therefore, “it
was not commingling per se,”3 but rather the unique level of
state control over the budgets of school districts that led us to
conclude in Belanger that local funds were interchangeable
with state funds. Id. In Belanger, it was the fact that “the state
controlled the budget and would be required to make up any
  2
    See Cal. Health & Safety Code §§ 44300-44394.
  3
    Were commingling of funds the only requirement for immunity from
suit, there would be few limits to the doctrine of sovereign immunity. See
Savage, 343 F.3d at 1041 (“[I]f mere commingling were enough to bestow
governmental agency status upon the School District, then it would also
be an arm of the federal government, as well as an arm of the [County].”).
      BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1551
budgetary shortfalls” that made the state treasury vulnerable.
Savage, 343 F.3d at 1042. By contrast, the District is required
by California law to turn to local cities and counties, and not
the State of California, to make up any budgetary shortfalls.
Cal. Health & Safety Code § 40701.5(b) (stating that
expenses not met by funding sources shall be provided by an
assessment on cities that have a member on the district board
and on counties within the district); see also id. § 40101(a)(1)
(explaining that an air pollution control district’s funds may
be appropriated from local counties and deposited in the dis-
trict treasury).

   Moreover, the District has the discretion to replenish its
budget by leasing, selling, or disposing of any property that
it no longer uses and paying any resulting proceeds into the
District’s general fund. Id. § 40701(e). With the authority to
raise its own funds, the District bears a closer resemblance to
the entities in Holz and Mt. Healthy than the school district in
Belanger. In Holz, the fact that Alaska provided a set amount
of state funds to local school districts suggested that the
school districts could supplement those funds with their own
revenues and, therefore, that a money judgment would not
necessarily be paid with state funds. 347 F.3d at 1184. In Mt.
Healthy, the Supreme Court held that the local school board
was not an arm of the state, despite receiving a significant
amount of money from the State of Ohio, because it had
extensive powers to issue bonds and to levy taxes. 429 U.S.
at 280; see also Hess v. Port Auth. Trans-Hudson Corp., 513
U.S. 30, 45 (1994) (noting the fact that the Port Authority
generated its own revenues in concluding that it was not an
arm of the state); Vierling v. Celebrity Cruises, Inc., 339 F.3d
1309, 1315 (11th Cir. 2003) (holding that an entity that was
“financially self-sufficient, generate[d] its own revenues, and
pa[id] its own debts” was not an arm of the state). The author-
ity to raise independent revenue is a relevant consideration
because “the fact that the state has given the entity the author-
ity to generate revenue provides compelling evidence that the
state has created an autonomous entity rather than an alter ego
1552 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
or instrumentality that operates at the state’s behest and relies
exclusively on state appropriations.” Alex E. Rogers, Note,
Clothing State Governmental Entities with Sovereign Immu-
nity: Disarray in the Eleventh Amendment Arm-of-the-State
Doctrine, 92 Colum. L. Rev. 1243, 1308 (1992).

   The District finally argues that, even if it has other sources
of funding, the State of California is ultimately responsible in
the event that a money judgment threatens the District’s sur-
vival. The District relies on two cases in which we held that
the first Mitchell factor weighed in favor of finding sovereign
immunity even though the state was not legally responsible
for a money judgment against the entity. See Aguon v. Com-
monwealth Ports Auth., 316 F.3d 899, 902-04 (9th Cir. 2003)
(concluding that the Commonwealth Ports Authority (CPA)
was an arm of the Commonwealth of the Northern Mariana
Islands even though the Commonwealth was “not directly lia-
ble for a judgment against the CPA”)4; Alaska Cargo Transp.,
Inc. v. Alaska R.R. Corp., 5 F.3d 378, 380, 382 (9th Cir. 1993)
(holding that a state-run railroad was an arm of the state
despite a state law providing that the railroad, and not the
state, was liable for a judgment against it).5
  4
     Although Eleventh Amendment sovereign immunity was not directly
at issue in Aguon, we applied the Mitchell test to guide our analysis of
whether the CPA was a “person” subject to suit under 42 U.S.C. § 1983.
Aguon, 316 F.3d at 901-02.
   5
     In both Aguon and Alaska Cargo, we considered the first Mitchell fac-
tor together with the second—whether the entity performs a central gov-
ernmental function—and concluded that the State was the “real,
substantial party in interest” despite the fact that it was not legally obli-
gated to satisfy a judgment against the entity. Aguon, 316 F.3d at 902
(stating that “we cannot divorce the second Mitchell factor . . . from our
assessment of the first factor” in determining whether the Commonwealth,
though not directly liable for a judgment against the CPA, was nonetheless
the real party in interest (quoting Alaska Cargo, 5 F.3d at 380)); Alaska
Cargo, 5 F.3d at 380 (“[W]e cannot divorce the second Mitchell factor, the
governmental function [the railroad] performs, from our assessment of the
first factor, which is the impact on the State of Alaska of a judgment
against [the railroad].”).
       BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1553
   In Alaska Cargo, however, we relied on a state statute that
required the railroad to seek funding from the state legislature
if a particular service was not self-sustaining. 5 F.3d at 381.
Furthermore, “[w]e emphasized the unique role of the Alaska
Railroad as the ‘life-support system for thousands of Alas-
kans’ that made it a central governmental function.’ ” Holz,
347 F.3d at 1184 (quoting Alaska Cargo, 5 F.3d at 381). Like-
wise, in Aguon, we noted that the Commonwealth would be
forced to pay an unsatisfied money judgment against the CPA
“to protect its island economy” because the CPA provided
“essential seaport and airport services.” Aguon, 316 F.3d at
903. We also noted that the function of the CPA in the Com-
monwealth was “equally indispensable to the role of [the rail-
road] in Alaska.” Id. at 902.

   [6] Unlike in Alaska Cargo and Aguon, here the first Mitch-
ell factor weighs against a finding of sovereign immunity
because the District “is not a single, unique entity upon which
a great part of the state depends for its lifeline, and there is
no comparable structure of compulsion thrusting the State into
the role of real, substantial party in interest.” Holz, 347 F.3d
at 1185 (distinguishing the railroad at issue in Alaska Cargo
from the public school district at issue in Holz). We held in
Holz that in the absence of a showing that money used to pay
a judgment will necessarily be replaced with state funds, “we
adhere to our basic proposition that ‘the fact that the state may
ultimately volunteer to pay the judgment . . . is immaterial;
the question is whether the state treasury is legally obligat-
ed’ ” to do so. Id. (quoting Durning v. Citibank, N.A., 950
F.2d 1419, 1425 n.3 (9th Cir. 1991) (internal quotation marks
omitted) (emphasis in original)). Because here, the applicable
state law provides that the State has no legal obligation to pay
a money judgment against the District, and because there is
no evidence that the State would replace funds used to satisfy
a judgment,6 the first Mitchell factor—the one given most
   6
     In its discovery responses, the District stated that it did not know
whether it had a right of reimbursement from the State in the event that
it was required to pay a judgment against it, because the District would
first seek reimbursement from the county.
1554 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
weight—favors a finding that the District is not an arm of the
state.

               B.    Central Governmental Function

   [7] In assessing the second Mitchell factor—whether the
entity performs a central governmental function—we evaluate
whether the District addresses “a matter of statewide rather
than local or municipal concern,” see Belanger, 963 F.2d at
253, and “the extent to which the state exercises centralized
governmental control over the entity.” Savage, 343 F.3d at
1044. The District contends that it performs a central govern-
mental function because it was created by the State of Califor-
nia to enforce statewide and nationwide air pollution
standards.

   It is true that air pollution control districts are the mecha-
nism through which the State meets and maintains state and
federal air quality standards under the federal Clean Air Act
and California law. See 42 U.S.C. §§ 7407(a) & 7410(a)(1)
(requiring each state to submit a plan specifying how it will
achieve and maintain national air quality standards in each air
quality control region within the state); Cal. Health & Safety
Code § 39602 (designating the California Air Resources
Board (“the Board”) as the state agency responsible for pre-
paring the implementation plan required by the Clean Air
Act); Id. §§ 40001-40002, 40702 (establishing air pollution
control districts and empowering them to adopt and enforce
rules and regulations designed to meet and maintain state and
federal air quality standards within their jurisdictions).7
  7
   Although the District is a state creation, see 42 U.S.C. § 7401(b)(4);
Cal. Health & Safety Code §§ 40000-41133, an entity is not automatically
entitled to sovereign immunity merely because it was created by the State.
“[U]ltimate control of every state-created entity resides with the State, for
the State may destroy or reshape any unit it creates. Political subdivisions
exist solely at the whim and behest of the State, yet cities and counties do
not enjoy Eleventh Amendment immunity.” Hess, 513 U.S. at 47 (internal
quotation marks omitted).
        BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1555
   [8] While air pollution control districts form a key part of
this larger state and federal regulatory framework, they none-
theless have a highly localized function. Although the Califor-
nia Air Resources Board, a state agency, coordinates the
activities of air pollution control districts that are necessary to
comply with the Clean Air Act, id. § 39602, the Board’s lim-
ited oversight role over districts does not support the Dis-
trict’s contention that it is merely an enforcement agency of
the Board and therefore performs a central governmental
function. Indeed, the California Legislature has declared that
“[l]ocal and regional authorities have the primary responsibil-
ity for control of air pollution from all sources other than
vehicular sources.” Id. § 39002 (emphasis added); see also id.
§ 40000 (same). The Legislature also has declared that
“[s]ince air pollution knows no political boundaries, . . . a
regional approach to the problem should be encouraged when-
ever possible . . . .” Id. § 39001. As the California Supreme
Court has explained, “Local and regional boards will be more
familiar with local conditions, both environmental and eco-
nomic, than the Board. . . . Thus the districts are asked to
evaluate the economic consequences of air quality regulation
in specific local situations where concrete relevant evidence
may be presented.” Western Oil & Gas Ass’n v. Air Res. Bd.,
691 P.2d 606, 619 (Cal. 1984). In sum, although the preven-
tion of air pollution is a matter of statewide concern, air pollu-
tion control districts perform primarily local governmental
functions. See Lynch v. San Francisco Hous. Auth., 65 Cal.
Rptr. 2d 620, 627 (Cal. Ct. App. 1997) (noting that local
housing authorities “admittedly address matters of concern to
the state . . . but in doing so they function within, and are con-
cerned with, a limited geographic area”).8
  8
   The District argues that “[a]ir pollution prevention falls under the
broad police powers of the states,” and that the delegation of this impor-
tant power to an air pollution control district makes it an arm of the state.
The fact that an entity has enforcement or police powers, however, does
not immunize it from suit. As the district court pointed out, municipalities,
even though they often carry out or enforce state rules and regulations, are
not entitled to sovereign immunity.
1556 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
   In addition to performing a primarily local function, air pol-
lution control districts are entrusted with a variety of discre-
tionary powers and have substantial autonomy in carrying out
their duties.9 For instance, they may adopt their own rules and
budgets, establish their own regulatory systems for reducing
air contaminants, issue abatement orders, and bring actions to
assess civil penalties against individuals who violate air pollu-
tion regulations. See Cal. Health & Safety Code §§ 40702,
40709, 40131, 42403, 42450. Districts also may delegate any
functions related to implementing transportation control mea-
sures to any local agency. Id. § 40717(e).

   Further, just as California is allowed to implement air qual-

  Indeed, the fact that an entity provides a valuable public service does
not make it an arm of the state. As the Supreme Court has explained:
    A charitable organization may undertake rescue or other good
    work which, in its absence, we would expect the State to shoul-
    der. But none would conclude, for example, that in times of flood
    or famine the American Red Cross, to the extent it works for the
    public, acquires the States’ Eleventh Amendment immunity.
Hess, 513 U.S. at 50 (footnote omitted) (rejecting the argument that the
Port Authority is immune from suit because it supports public projects that
the State would otherwise have to finance).
   9
     Although the Mitchell test does not explicitly discuss the concept of
autonomy, we previously have incorporated this principle into the “central
governmental function” prong. See, e.g., Savage, 343 F.3d at 1044 (noting
that in analyzing the second Mitchell factor “we assess the extent to which
the state exercises centralized governmental control over the entity” and
concluding that Arizona school districts had “enormous autonomy in the
management of public education”). Moreover, the consideration of local
autonomy as a factor in our analysis is consistent with the practice of other
circuits. See, e.g., S.J. v. Hamilton County, 374 F.3d 416, 420 (6th Cir.
2004) (considering as one factor “what degree of control the state main-
tains over the entity”); Vierling, 339 F.3d at 1314 (considering as one fac-
tor “what degree of control the state maintains over the entity”); Wojcik
v. Mass. State Lottery Comm’n, 300 F.3d 92, 101 (1st Cir. 2002) (assess-
ing, among other things, “whether the state exerts control over the agency,
and if so, to what extent”); Southwestern Bell, 243 F.3d at 939 (same).
        BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1557
ity standards that are more stringent than federal require-
ments, see 42 U.S.C. § 7416, regional and local districts have
discretion to promulgate and enforce air quality standards that
are more stringent than state requirements. See Cal. Health &
Safety Code § 41508. Air pollution control districts also have
the discretion to balance statewide environmental concerns
with potential local economic consequences by granting vari-
ances below state standards. Id. § 42350; Western Oil, 691
P.2d at 618.

   [9] In light of the decentralized structure of air quality
enforcement in California, as well as the degree of autonomy
enjoyed by local air pollution control districts, we agree with
the district court that “while districts derive their authority
from the State, they are granted wide latitude to conduct their
affairs as they see fit, so long as they maintain standards at
least as stringent as those adopted by the State.” In short, the
District does not perform a central governmental function and
this second prong of the Mitchell test favors a finding that the
District is not an arm of the state.10
  10
     The District argues that it should be considered an arm of the state
because we recognized in United States v. Price that an analogous district
in Nevada acted under “state” authority when enforcing air pollution regu-
lations. 314 F.3d 417, 421 (9th Cir. 2002). Price is inapposite, however.
There, we applied the separate sovereign doctrine to determine that the
Double Jeopardy Clause did not bar Price’s prosecution for a violation of
the Clean Air Act even though the local district had levied a fine against
Price for the same conduct. Id. Determining that an entity acts under the
authority of a state as opposed to the federal government in the context of
the Double Jeopardy Clause is far different from holding that the entity is
an arm of the state under the Eleventh Amendment. Thus, our holding in
Price does not compel a finding that the District here enjoys sovereign
immunity. Cf. Edelman v. Jordan, 415 U.S. 651, 668 n.12 (1974) (noting
that “while county action is generally state action for purposes of the Four-
teenth Amendment, a county defendant is not necessarily a state defendant
for purposes of the Eleventh Amendment”).
  The District also cites Sherwin-Williams Co. v. South Coast Air Quality
Mgmt. Dist., 104 Cal. Rptr. 2d 288, 302 (Cal. Ct. App. 2001), for the prop-
osition that California law considers an air quality management district
1558 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
                   C.    Power to Sue or Be Sued

   [10] An entity’s power to sue or be sued weighs against a
finding of Eleventh Amendment immunity. Belanger, 963
F.2d at 254. It is undisputed that California law provides that
“[a] district shall have power . . . [t]o sue and be sued in the
name of the district in all actions and proceedings in all courts
and tribunals of competent jurisdiction.” Cal. Health & Safety
Code § 40701(b). In addition, state law specifically contem-
plates that claims for damages may be brought against air pol-
lution control districts. See id. § 40707 (providing that
“claims for money or damages against a district are governed
by” provisions in the California Government Code pertaining
to claims and actions against public entities). And at least one
California court has allowed a damages lawsuit against an air
pollution control district. See Colusa Air Pollution Control
Dist. v. Superior Court of Los Angeles County, 277 Cal. Rptr.
110, 112-13 (Cal. Ct. App. 1991) (holding that an air pollu-
tion control district was properly joined as a defendant in an
environmental lawsuit seeking, among other relief, monetary
damages). Although this third factor of the Mitchell test is not
dispositive, it clearly favors a finding that the District is not
an arm of the state.

            D.    Power to Take Property in its Name

  [11] California law also authorizes the District to “take by
grant, purchase, gift, devise, or lease, to hold, use, and enjoy,
and to lease or dispose of any real or personal property within
or without the district necessary to the full exercise of its

(and therefore, an air pollution control district) a “state agency.” This is
a mischaracterization of Sherwin-Williams, however, which used the
phrase “state agency” only in its statement of the standard of review in
environmental agency cases. Leaving aside the fact that Sherwin-Williams
never addressed sovereign immunity, it is obvious that “[l]abeling an
entity as a ‘state agency’ in one context does not compel treatment of that
entity as a ‘state agency’ in all contexts.” Lynch, 65 Cal. Rptr. 2d at 623.
       BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1559
powers.” Cal. Health & Safety Code § 40701(d). A district
even may use the proceeds from property transactions to
replenish its general fund. See id. § 40701(e). This factor also
weighs in favor of finding that the District is not an arm of the
state.

                        E.    Corporate Status

   [12] “The final Mitchell factor is concerned with the extent
to which . . . an entity [is] distinct from the state.” Holz, 347
F.3d at 1188. Here, California law defines an air pollution
control district as “a body corporate and politic and a public
agency of the State.” Cal. Health & Safety Code § 40700. On
the one hand, the characterization of a district as a body cor-
porate implies that the District has a corporate status separate
from the State of California. See Durning v. Citibank, N.A.,
950 F.2d 1419, 1427 (9th Cir. 1991) (holding that a state law
defining a community development authority as “body corpo-
rate operating as a state instrumentality” indicated that it had
“its own independent corporate identity”). On the other hand,
the designation of a district as “a public agency of the State”
suggests that it may not have a separate identity. Nonetheless,
as noted above, under the California Government Code, a
“district” is included in the definition of a “local public enti-
ty,” and a “local public entity” is specifically distinguished
from “the State.” Cal. Gov’t Code § 900.4 (providing that a
“local public entity” includes “a county, city, district, public
authority, public agency, and any other political subdivision
or public corporation in the State, but does not include the
State”); see also id. § 900.6 (defining “State” as “the State
and any office, officer, department, division, bureau, board,
commission or agency of the State claims against which are
paid by warrants drawn by the Comptroller”).11
   11
      See also Moor v. County of Alameda, 411 U.S. 693, 719-21 (1973)
(noting that provisions of California law designating a county as a “body
corporate and politic” and defining a county as a “local public entity” in
contrast to the State were “persuasive indicia of the independent status”
of counties relative to the State, leading to the conclusion that Alameda
County had a “sufficiently independent corporate character” to warrant its
treatment as a citizen of the state for purposes of diversity jurisdiction).
1560 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL
   The District’s independent corporate status is also evident
in its system of governance. California law provides that the
governing board of any air pollution control district shall be
comprised of mayors, city council members, and county
supervisors — as jointly determined by member counties and
cities — and shall reflect the geographic diversity of the
region. See Cal. Health & Safety Code § 40704.5; cf. Aguon,
316 F.3d at 903-04 (noting that the Commonwealth Ports
Authority had a Commonwealth-appointed board of directors
and a governor-appointed director); Alaska Cargo, 5 F.3d at
381-82 (noting that the governor appointed all seven members
of the railroad’s board); Wojcik, 300 F.3d at 101 (noting that
the governor had power of approval over the Lottery Com-
mission’s director and power of appointment over the Com-
mission’s governing officials).

   [13] In terms of day-to-day governance, the District’s gov-
erning board determines the number of personnel it employs
and how much it pays employees. Cal. Health & Safety Code
§§ 40705, 40706. County officers and employees are expected
to work ex officio for the district, as they would for the
county, without additional compensation. Id. § 40120. As the
district court properly noted, “the State exercises little control
over the structure and operation of the districts, which sug-
gests that districts function independently from the State”; see
also Williams, 242 F.3d at 321 (refusing to extend sovereign
immunity to a regional transportation authority whose execu-
tive committee consisted of members appointed by municipal-
ities and whose “day-to-day operations . . . fall under purely
local control”). Therefore, this fifth factor also favors a find-
ing that the District is not an arm of the state.

                            ****

   [14] In sum, all five of the Mitchell factors lead to the con-
clusion that California’s air pollution control districts are not
instrumentalities of the State entitled to sovereign immunity
under the Eleventh Amendment. Accordingly, we affirm the
      BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1561
district court’s rulings denying the District’s motions for sum-
mary judgment and reconsideration.

  AFFIRMED.
