                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


CSX TRANSPORTATION,                    
INCORPORATED,
                Plaintiff-Appellee,
                and
UNITED STATES OF AMERICA,
                        Intervenor,
                 v.
THE BOARD OF PUBLIC WORKS OF THE
STATE OF WEST VIRGINIA; BOB WISE,              No. 01-2492
Governor; JOE MANCHIN, III,
Secretary of State; JOHN D. PERDUE,
State Treasurer; GLEN B. GAINER,
III, State Auditor; DARRELL V.
MCGRAW, JR., Attorney General;
GUS DOUGLASS, Commissioner of
Agriculture; DAVID STEWART, State
Superintendent of Schools,
              Defendants-Appellants.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              Joseph Robert Goodwin, District Judge.
                          (CA-01-299-1)

                       Argued: May 7, 2002

                      Decided: July 12, 2002

      Before WIDENER and MICHAEL, Circuit Judges, and
           C. Arlen BEAM, Senior Circuit Judge of the
      United States Court of Appeals for the Eighth Circuit,
                     sitting by designation.
2    CSX TRANSPORTATION, INC. v. THE BOARD    OF   PUBLIC WORKS
Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Katherine A. Schultz, Senior Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Vir-
ginia, for Appellants. James W. McBride, BAKER, DONELSON,
BEARMAN & CALDWELL, Washington, D.C., for Appellee. Steph-
anie Robin Marcus, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Inter-
venor. ON BRIEF: Scott E. Johnson, Senior Assistant Attorney Gen-
eral, Steven E. Dragisich, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Charleston, West Virginia, for Appel-
lants. Anne M. Stolee, BAKER, DONELSON, BEARMAN &
CALDWELL, Washington, D.C., for Appellee. Robert D. McCallum,
Jr., Assistant Attorney General, Karl K. Warner, II, United States
Attorney, Mark B. Stern, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Inter-
venor.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   CSX Transportation, Inc. (CSX) brought this lawsuit against the
Board of Public Works of the State of West Virginia (the Board) and
its officers, claiming that the Board’s ad valorem tax assessment of
its rail transportation property violates section 306 of the Railroad
Revitalization and Regulatory Reform Act of 1976 (the 4-R Act), now
codified at 49 U.S.C. § 11501. The Board moved to dismiss, arguing
that the lawsuit is barred by West Virginia’s Eleventh Amendment
        CSX TRANSPORTATION, INC. v. THE BOARD       OF   PUBLIC WORKS       3
immunity. The district court denied the motion, and the Board filed
this interlocutory appeal. We affirm.

                                      I.

   Section 306 of the 4-R Act was enacted to protect railroads from
discriminatory state taxation.1 The statute prohibits "a State, subdivi-
sion of a State, or authority acting for a State or subdivision of a
State" from assessing rail transportation property at a higher percent-
age of the property’s true market value than the percentage applied to
other commercial and industrial property. 49 U.S.C. § 11501(b)(1).
The statute also prohibits states, subdivisions, and authorities from
levying or collecting taxes based on discriminatory assessments of
rail transportation property. Id. § 11501(b)(2).2 Federal district courts
have jurisdiction to prevent state violations of these duties if "the ratio
of assessed value to true market value of rail transportation property
exceeds by at least 5 percent the ratio of assessed value to true market
value of other commercial and industrial property in the same assess-
ment jurisdiction." Id. § 11501(c).
  1
     Section 306 has twice been recodified, but the recodifications were
not intended to make any substantive changes to the statute. See Clinch-
field R.R. Co. v. Lynch, 700 F.2d 126, 128 n.1 (4th Cir. 1983). We cite
to the current codification of section 306 at 49 U.S.C. § 11501, but refer
to the statute in the text as "section 306 of the 4-R Act."
   2
     49 U.S.C. § 11501(b) provides in relevant part:
      The following acts unreasonably burden and discriminate against
      interstate commerce, and a State, subdivision of a State, or
      authority acting for a State or subdivision of a State may not do
      any of them:
             (1) Assess rail transportation property at a value that has
          a higher ratio to the true market value of the rail transporta-
          tion property than the ratio that the assessed value of other
          commercial and industrial property in the same assessment
          jurisdiction has to the true market value of the other com-
          mercial and industrial property.
            (2) Levy or collect a tax on an assessment that may not
          be made under paragraph (1) of this subsection.
4       CSX TRANSPORTATION, INC. v. THE BOARD   OF   PUBLIC WORKS
   In this lawsuit, CSX alleges that the Board’s tax assessments of its
rail transportation property for the 2000 tax year violate section 306.
Under West Virginia law, the Board is responsible for determining
the assessed value of rail transportation property and other public ser-
vice company property in West Virginia. W. Va. Code § 11-6-1. Non-
public service property in West Virginia is assessed for ad valorem
tax purposes by tax assessors for the counties in which the property
is located. When multiplied by the tax rate, these assessed values
determine the amount of ad valorem taxes to be paid. CSX alleges
that for the 2000 tax year, the Board assessed its rail transportation
property in West Virginia at a value that was at least 60% of the prop-
erty’s actual market value. CSX claims that, in contrast, the non-
public service property of commercial and industrial taxpayers in
West Virginia was assessed for the 2000 tax year at 55% or less of
the property’s actual market value. According to CSX, this disparity
violates section 306. CSX has withheld payment of the portion of its
ad valorem taxes based on the Board’s allegedly excessive assess-
ment. It seeks prospective injunctive and declaratory relief that would
prevent the Board and its officers from continuing to assess its prop-
erty in an illegal manner and from collecting payment of the allegedly
illegal taxes that CSX has refused to pay.

   Even this brief recitation of the facts produces a distinct sense of
deja vu. Although this case is new in the sense that it challenges the
ad valorem tax assessments for the 2000 tax year, we dealt with
essentially the same legal arguments and factual contentions regard-
ing the 1996 tax year in CSX Transportation, Inc. v. Board of Public
Works of the State of West Virginia, 138 F.3d 537 (4th Cir. 1998)
(CSX I).3 In that case, as in this one, CSX and another railroad had
withheld payment of the allegedly illegal portion of their ad valorem
taxes and sought an injunction against future collection of the illegal
taxes. The district court ruled that it had no jurisdiction to hear the
case. It reasoned that section 306’s purported abrogation of state sov-
ereign immunity could not be justified as an exercise of Congress’s
power under Section Five of the Fourteenth Amendment and was
    3
   We addressed a challenge by CSX and another railroad to the Board’s
ad valorem tax assessments for the 1993 tax year in CSX Transportation,
Inc. v. Board of Public Works of the State of West Virginia, 95 F.3d 318
(4th Cir. 1996).
      CSX TRANSPORTATION, INC. v. THE BOARD      OF   PUBLIC WORKS     5
therefore invalid under the Supreme Court’s recent decision in Semi-
nole Tribe of Florida v. Florida, 517 U.S. 44 (1996). The district
court also ruled that Ex Parte Young was inapplicable on the ground
that the railroads sought retrospective rather than prospective relief.
On appeal, we found it unnecessary to reach the question of whether
section 306 was a valid abrogation of state sovereign immunity "be-
cause even assuming that section 306 cannot be justified as an exer-
cise of Section Five of the Fourteenth Amendment . . . Ex Parte
Young authorizes an injunction . . . that will provide the railroads with
complete relief." CSX I, 138 F.3d at 540.

   CSX I appears to stand, then, for the proposition that the relief
sought by CSX in this case is available under Ex Parte Young regard-
less of whether section 306 validly abrogates state sovereign immu-
nity. The district court in this case agreed, and therefore denied the
Board’s motion to dismiss the case as barred by West Virginia’s Elev-
enth Amendment immunity. The Board has filed this interlocutory
appeal. See P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 141 (1993) (holding that denial of a motion to dismiss
on grounds of Eleventh Amendment immunity is immediately appeal-
able under the collateral order doctrine).

                                   II.

   The Board labors mightily to explain why its sovereign immunity
arguments are not precluded by CSX I. Yet even assuming the
absence of issue preclusion, we have no doubt that our decision in
CSX I controls the outcome of this case. To the extent that the Board
advances arguments that were not before us in that case, we find those
arguments unconvincing. As in CSX I, we hold that CSX’s lawsuit
may go forward under Ex Parte Young regardless of whether section
306 validly abrogates West Virginia’s Eleventh Amendment immunity.4
  4
   In the time since our decision in CSX I, three circuits have held that
section 306 validly abrogates state sovereign immunity under Section
Five of the Fourteenth Amendment. See Burlington N. and Santa Fe Ry.
Co. v. Burton, 270 F.3d 942 (10th Cir. 2001); Wheeling & Lake Erie Ry.
Co. v. Pub. Util. Comm’n of the Commonwealth of Penn., 141 F.3d 88
(3d Cir. 1990); Oregon Short Line R.R. Co. v. Dep’t of Revenue Oregon,
139 F.3d 1259 (9th Cir. 1998).
6     CSX TRANSPORTATION, INC. v. THE BOARD       OF   PUBLIC WORKS
   The Board concedes that, under CSX I, the relief sought by CSX
in this case is prospective rather than retrospective and that this relief
would ordinarily be available under Ex Parte Young. It argues, how-
ever, that Ex Parte Young does not apply here for two reasons. First,
the Board contends that CSX cannot enforce its section 306 rights
under Ex Parte Young because the substantive provisions of section
306 are unconstitutional in their entirety. Second, the Board claims
that Ex Parte Young is inapplicable under Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261 (1997), because the relief sought by
CSX would unduly infringe upon West Virginia’s "special sover-
eignty interest" in taxing the property within its borders. Neither argu-
ment is persuasive.

   In its first argument, the Board contends that if section 306 does
not effectively abrogate state sovereign immunity, the statute is
unconstitutional across the board and that relief under Ex Parte Young
is therefore unavailable. Consequently, the Board argues that (despite
CSX I) we must reach the question of whether section 306 validly
abrogates West Virginia’s Eleventh Amendment immunity. We agree
that Ex Parte Young cannot help CSX if section 306 is unconstitu-
tional, but we are puzzled by the Board’s apparent claim that the con-
stitutionality of section 306 in its entirety (and thus the applicability
of Ex Parte Young) depends on whether the provision validly abro-
gates state sovereign immunity. The Board’s argument turns on the
claim that, unlike other statutes discussed in the Supreme Court’s
cases on the Ex Parte Young doctrine, section 306 is unique because
it applies only to states. The Board suggests that if we strip away the
aspects of the statute that are rendered invalid by the Eleventh
Amendment, nothing remains that could be enforced through the
mechanism of Ex Parte Young. In other words, the Board’s argument
is that when a statute applies only to states, its failure to validly abro-
gate Eleventh Amendment immunity also renders it unconstitutional
in its entirety. Without expressing any opinion on the possible merits
of this argument in a different case, we conclude that the argument
does not work here because section 306 can be enforced against enti-
ties that are not protected by Eleventh Amendment immunity. Section
306 applies not only to states, but also to "subdivision[s] of a State"
and "authorit[ies] acting for a State or subdivision of a State." 49
U.S.C. § 11501(b). As CSX points out, it is hornbook law that coun-
ties, cities, and other subdivisions of states are not protected by the
      CSX TRANSPORTATION, INC. v. THE BOARD        OF   PUBLIC WORKS      7
Eleventh Amendment. See, e.g., Edelman v. Jordan, 415 U.S. 651,
667 n.12 (1974); Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995).5 As
a result, section 306 would not be unconstitutional in its entirety even
if the Board were correct that (1) section 306 fails to validly abrogate
state sovereign immunity and (2) a statute applying only to states that
fails to abrogate state sovereign immunity is therefore unconstitu-
tional. Accordingly, we conclude that the Board’s first argument fails.

   The Board’s second argument is that the Ex Parte Young doctrine
cannot be used to enforce section 306 because West Virginia’s
authority to tax the rail transportation property within its boundaries
is a protected "special sovereignty interest" under the Supreme
Court’s decision in Coeur d’Alene. We disagree. First, we note that
because Coeur d’Alene was decided prior to our decision in CSX I and
the parties were given an opportunity to brief the court on its implica-
tions, we think it likely that the Board’s Coeur d’Alene argument is
precluded. Second, even if the argument is properly before us, we
refuse to read Coeur d’Alene so broadly as the Board suggests. In
Coeur d’Alene, the Supreme Court considered a claim by the Coeur
d’Alene Tribe that federal law gave the tribe beneficial ownership of
the submerged lands and banks of Lake Coeur d’Alene in Idaho. The
Court held that even prospective relief under Ex Parte Young was
unavailable because the lawsuit was the "functional equivalent of a
quiet title action which implicate[d] special sovereignty interests."
Coeur d’Alene, 521 U.S. at 281. The Court pointed out that the law-
suit sought a "determination that the lands in question are not even
within the regulatory jurisdiction of the State," as well as injunctive
relief that "would bar the State’s principal officers from exercising
their governmental powers and authority over the disputed lands and
waters." Id. at 282. This, the Court explained, would affect Idaho’s
sovereign interests "in a degree fully as intrusive as almost any con-
  5
   The original language of section 306 further undermines the Board’s
argument. As originally enacted as part of the 4-R Act, the statute pro-
hibited discriminatory taxation of railroads by "a State, a political subdi-
vision of a State, or a governmental entity or person acting on behalf of
such State or subdivision." 4-R Act, Pub. L. No. 94-210, § 306, 90 Stat.
31, 54 (1976) (emphasis added). As we noted above, see supra at 3 n.1,
the changes made to the language of section 306 during its recodification
were not intended to be substantive.
8     CSX TRANSPORTATION, INC. v. THE BOARD      OF   PUBLIC WORKS
ceivable retroactive levy upon funds in its Treasury." Id. at 287. In
sum, Coeur d’Alene ruled that Ex Parte Young did not apply because
the Tribe’s lawsuit was more than simply a suit to enjoin state offi-
cials from an ongoing violation of federal law. Instead the lawsuit was
"the functional equivalent of a suit against the State of Idaho itself
because it sought to dispossess the State from land within its borders
and to remove that land from the State’s regulatory authority." TFWS,
Inc. v. Schaefer, 242 F.3d 198, 205 (4th Cir. 2001) (internal quotation
marks and citation omitted); see also Agua Caliente Band of Cahuilla
Indians v. Hardin, 223 F.3d 1041, 1048 (9th Cir. 2000) (stating that
the Young doctrine was inapplicable in Coeur d’Alene because of the
"unique divestiture of the state’s broad range of controls over its own
lands" and that "the question posed by Coeur d’Alene is not whether
a suit implicates a core area of sovereignty, but rather whether the
relief requested would be so much a divestiture of the state’s sover-
eignty as to render the suit as one against the state itself"). Although
we recognize the historical and practical importance of a state’s pow-
ers of taxation, we do not think the relief sought by CSX under sec-
tion 306 of the 4-R Act approaches the level of interference with state
sovereignty that was present in Coeur d’Alene. Section 306 neither
prevents West Virginia from taxing rail transportation property nor
dictates the absolute rate at which the state may tax such property. It
simply prevents state officials from imposing discriminatory taxes on
rail carriers. This is the sort of garden variety prospective relief that
has traditionally been available under Ex Parte Young, and it remains
available after Coeur d’Alene. Cf. TFWS, 242 F.3d at 206 (explaining
that Ex Parte Young was applicable where the plaintiff was "not seek-
ing to strip Maryland of its authority to regulate liquor under the
Twenty-first Amendment," but simply sought "to require [the relevant
state official] to regulate in a way that is consistent with the Sherman
Act"). We conclude that the Board’s second argument fails because
CSX’s claims under section 306 do not threaten a sufficiently signifi-
cant intrusion on West Virginia’s powers of taxation to implicate the
state’s "special sovereignty interests." Cf. Hardin, 223 F.3d at 1049
(holding that suit by federally recognized Native American tribe seek-
ing prospective relief against certain applications of California’s sales
and use tax did not interfere with the state’s taxation powers enough
for Coeur d’Alene to bar application of the Ex Parte Young doctrine);
but see ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1193 (10th Cir.
1998) (holding that "a state’s power to assess and levy personal prop-
      CSX TRANSPORTATION, INC. v. THE BOARD     OF   PUBLIC WORKS     9
erty taxes on property within its borders" qualifies as a special sover-
eignty interest under Coeur d’Alene).

  We have considered the other arguments raised by the Board and
conclude that they do not merit discussion.

                                  III.

   For the foregoing reasons, we conclude that the Board has failed
to show why this case is not controlled by our decision in CSX I. We
reaffirm our holding in that case that prospective relief against the
individual defendants is available under Ex Parte Young regardless of
whether section 306 validly abrogates West Virginia’s Eleventh
Amendment immunity. Accordingly, the district court’s order deny-
ing the Board’s motion to dismiss is

                                                          AFFIRMED.
