dissenting:

I respectfully dissent and disagree with the analysis of the majority. The trial court correctly dismissed Local 226’s case for failure to present a case or controversy under Article III because the attorney general lacks the actual authority to prosecute a criminal violation of NRS 668.105. Given this lack of prosecutorial power, the attorney general’s threat to take “appropriate action on behalf of the Nevada Department of Business and Industry, Financial Institutions Divisions” and to “refer” information about Local 226’s alleged illegal conduct to local prosecutors for “appropriate action” does not rise to the level of a justiciable controversy. Because the attorney general has no power to initiate prosecutions for violations of NRS 668.105 *620 and therefore has no “connection with enforcement” of the challenged statute as required under Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), the Eleventh Amendment also bars Local 226’s action against the attorney general.

In Nevada, the attorney general’s prosecutorial powers are limited to cases where a specific statute provides her with authority to initiate criminal prosecutions independent of a local district attorney. Under NRS 173.045(1), “[a]ll informations must be filed in the court having jurisdiction of the offenses specified therein, by the attorney general when acting pursuant to a specific statute or by the district attorney of the proper county as informant ....” NRS 173.045(1) (emphasis added); see also NRS 173.075(1) (information or indictment must be signed by “the attorney general acting pursuant to a specific statute” or the district attorney), 173.145(1) (court shall issue a warrant for defendants named in indictment or information upon request of “the attorney general acting pursuant to a specific statute” or the district attorney).

Although NRS 228.120(3) grants the attorney general power to “[a]ppear in, take exclusive charge of and conduct any prosecution in any court of this state for a violation of any law of this state, when in his opinion it is necessary, or when requested to do so by the governor,” that section does not provide the attorney general with authority to initiate a prosecution. Ryan v. Eighth Judicial Dist. Court, 88 Nev. 638, 641 , 503 P.2d 842, 844 (1972). Therefore, the fundamental prosecutorial authoi'ity to enforce statutes, which do not specifically provide the attorney general with the power to initiate criminal prosecutions, lies with local enforcement agencies. See id. 503 P.2d at 843 . Similarly, although NRS 228.170(1) might appear to grant the attorney general specific prosecutorial authority as well, the use of the term “suit” in that statute has been interpreted to authorize the initiation of civil actions only. Id. at 849. Thus, absent other specific statutory authority, the attorney general has no power to initiate a criminal prosecution of Local 226 for violation of NRS 668.105.

NRS 668.105 itself is silent on the issue of the attorney general’s prosecutorial powers. Nor has Local 226 identified any other statutes which specifically provide the attorney general with authority to initiate prosecutions for violations of section 668.105 or any other banking laws. Rather, Local 226 relies on NRS 228.110, 658.105 and 658.195(1) as the sources for the attorney general’s authority to act on behalf of the Banking Commissioner in prosecuting violations of section 668.105. The Banking Commissioner “[i]s charged with the enforcement of the provisions of [Title 55 which encompasses NRS 657-671].” NRS 658.105. Under section 658.195(1), the Banking Commissioner

NRS 658.195(1) (emphasis added). Local 226 assumes that the term “prosecute” refers to criminal prosecutions rather than civil enforcement actions and argues that because the Banking Commissioner cannot himself initiate a criminal prosecution, the only way he can fulfill his enforcement duty under section 658.105(1) is through the attorney general’s prosecutorial power.

According to Local 226, the attorney general, rather than the local district attorney, stands in the shoes of the Banking Commissioner to prosecute violations of section 668.105 because NRS 228.110 prohibits the Banking Commissioner from employing anyone other than the attorney general to represent the agency in court. Section 228.110 provides:

*621 1. The attorney general and his duly appointed deputies shall be the legal advisers on all state matters arising in the executive department of the state government.

2. No officer, commissioner or appointee of the executive department of the government for the State of Nevada shall employ any attorney at law or counselor at law to represent the State of Nevada within the state, or to be compensated by state funds, directly or indirectly, as an attorney acting within the state of the State of Nevada or any agency in the executive department thereof unless the attorney general and his deputies are disqualified to act in such matter or unless an act of the legislature specifically authorizes the employment of other attorneys or counselors at law.

3. All claims for legal services rendered in violation of this section shall be void.

NRS 228.110. Because the attorney general is the exclusive legal representative of all state executive agencies, Local 226 argues that a ruling that the attorney general lacks authority to prosecute violations of section 668.105 would place the Banking Commissioner in the untenable position of being unable to fulfill his statutory duty under NRS 658.105 and 658.195(1).

The district court rejected this argument on the following grounds:

I agree. As an initial matter, there is simply no support in the record for Local 226’s assumption that the term “prosecute” in section 658.195(1) imposes a duty on the Banking Commissioner to initiate criminal, rather than civil, enforcement actions for violations of the banking laws. Interpreting the term “prosecute” in this way directly conflicts with the statutory scheme that “invests control of the information process [governing criminal matters] in the district attorney to the exclusion of others”, Ryan, 503 P.2d at 843 , except the attorney general when she is acting pursuant to a specific statute. NRS 173.045(1).

Even assuming the Banking Commissioner has a duty to prosecute criminal violations of the banking laws under section 658.195(1) but lacks the ability to appear in court himself, it does not follow that local district attorneys are barred under section 228.110 from prosecuting violations on the Banking Commissioner’s behalf. Viewed in its entirety, section 228.110 clearly concerns civil matters only and functions to prevent the unnecessary expenditure of state funds to pay outside counsel when the attorney general’s office is able to adequately provide legal services to state agencies, unless the legislature specifically authorizes otherwise. Accordingly, a local district attorney’s prosecution of violations of the banking laws on behalf of the Banking Commissioner does not interfere with the purpose of NRS 228.110. This interpretation of section 228.110 is supported by statutes pursuant to which commissioners of other state agencies responsible for enforcing certain statutory provisions directly refer criminal violations of those statutes to local district attorneys for prosecution. See NRS 584.155 (district attorneys shall initiate criminal proceedings for violation of NRS 584.150 on complaint by the commissioner of food and drugs), 607.220 (district attorneys shall prosecute all criminal violations of law reported to them by the labor commissioner).

Moreover, Local 226’s argument is flawed because NRS 658.105 and 658.195(1) fail to “specific[ally]” confer *622 prosecutorial authority upon the attorney general. Those Nevada statutes which specifically confer prosecutorial jurisdiction stand in stark contrast to NRS 658.105 and 658.195(1). See NRS 228.170 (civil actions, actions against crimes committed in prisons); 228.175 (criminal offenses committed by state employees); 228.177 (criminal offenses committed by county employees); 228.410 (medicaid fraud); and 228.420 (industrial insurance fraud). In light of NRS 173.045(l)’s directive, I decline to infer such a grant of authority in the manner suggested by Local 226.

“[T]o satisfy the ‘case’ or ‘controversy’ requirement of Article III of the United States Constitution, a plaintiff must allege a present or immediate injury in fact which is fairly traceable to the challenged action and is likely to be redressed by a favorable court decision.” Board of Natural Resources of State of Wash. v. Brown, 992 F.2d 937 , 945 (9th Cir.1993). To show concrete injury in a declaratory judgment action, a plaintiff challenging a statute must demonstrate “a genuine threat that the allegedly unconstitutional law is about to be enforced against him.” Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983). It is not necessary that the plaintiff first expose himself to actual arrest or prosecution in order to challenge the constitutionality of a criminal statute. Steffel v. Thompson, 415 U.S. 452, 459 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974). “But ‘persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.’ ” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 , 99 S.Ct. 2301 , 60 L.Ed.2d 895 (1979) (quoting Younger v. Harris, 401 U.S. 37, 42 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971)).

Given the attorney general’s lack of prosecutorial authority to enforce section 668.105, the only question is whether the attorney general’s threats alone, without authority to implement those threats, creates a justiciable controversy. I disagree with the majority’s determination that a case or controversy is created solely by reason of such unenforceable threats. In the March 14 cease and desist letter, the attorney general threatened both to “refer” any information about additional alleged violations of section 668.105 by Local 226 to local prosecutors for “appropriate action” and to “take appropriate action” herself on behalf of the Department of Business and Industry, Financial Institutions Division.

Focusing solely on the attorney general’s threat to refer the matter to local prosecutors, the district court found that no justiciable claim exists. The majority rejected this finding. In Southern Pac. Transp. Co. v. Brown, 651 F.2d 613 (9th Cir.1980), the case relied on by the district court, several railroads sued the Oregon Attorney General to enjoin enforcement of a statute that restricted attempts by employers to negotiate settlements with employees injured in work-related accidents, alleging in part that the statute violated First and Fourteenth Amendment rights. Id. at 614. The Oregon Attorney General made no independent comments regarding enforcement of the statute, but stipulated that he would advise the district attorneys to presume the act constitutional and that they would enforce it unless restrained when requested to do so. In affirming the district court’s dismissal for lack of a justiciable controversy, this court reasoned that the Oregon Attorney General’s power to direct and advise the district attorneys did not make the alleged constitutional injury traceable to his action because such direction and advice was not binding on the district attorneys who were guaranteed autonomy under Oregon law. Id. at 615.

As in Southern Pacific, Nevada law provides district attorneys with exclusive control over the decision to initiate criminal prosecutions, except when a specific statute empowers the attorney general to initiate a prosecution independent of the district attorney. See NRS 173.045(1); *623 Ryan, 503 P.2d at 843 ; see also Cairns v. Sheriff, 89 Nev. 113, 115 , 508 P.2d 1015, 1017 (1973) (“The matter of the prosecution of any criminal case is within the entire control of the district attorney.”). In light of the autonomy of district attorneys under Nevada law, the attorney general’s mere referral of information about Local 226’s continued alleged violation of NRS 668.105 to local prosecutors in order for them to take “appropriate action” would not necessary result in a criminal prosecution. 1 Accordingly, contrary to the majority’s conclusion, the district court correctly found that the attorney general’s threat to refer the matter to local prosecutors did not give rise to a justiciable controversy.

The more difficult issue not addressed by the district court but discussed by the majority is whether the attorney general’s threat to take “appropriate action” herself satisfies the justiciability requirement because it was a “genuine” threat of prosecution which chilled Local 226’s exercise of its First Amendment rights. In Snoeck v. Brussa, 153 F.3d 984 (9th Cir.1998), the plaintiffs sued members and the executive director of the Nevada Commission on Judicial Discipline for declaratory relief. They alleged that the Commission’s complaint form chilled their First Amendment rights because it contained a warning that complainants could be subject to contempt proceedings for violating Nevada Supreme Court Rules on confidentiality in judicial discipline matters. However, the court held that only the Nevada Supreme Court possesses the power of contempt and that “[a]ny supposed threat of a contempt action by the Commission, and there has never been one, can therefore be seen to be no more than ‘imaginary, speculative or chimerical.’ ” Id. at 987 .

Although the generic warning on the Commission’s complaint form in Snoeck did not rise to the level of the attorney general’s specific threat in this case, the reasoning of Snoeck still applies here. Assuming that the vague language of the March 14 letter to take “appropriate action” on behalf of the Department of Business and Industry constitutes a threat of enforcement of the criminal statute, the attorney general’s threat can be characterized as “speculative” rather than “genuine” because, as in Snoeck , only local prosecutors in the appropriate jurisdiction, not the attorney general, possess the power to initiate a criminal prosecution for violation of section 668.105.

The case of Steffel v. Thompson, cited by Local 226, does not hold otherwise. In Steffel , the plaintiff alleged that he desired to continue handbilling at a local shopping center but had not done so because he feared arrest and prosecution under an allegedly unconstitutional statute. 415 U.S. at 456 , 94 S.Ct. 1209 . The court found that the threats of prosecution against the plaintiff were not “imaginary or speculative” because he had been twice warned to stop handbilling and was told by police that he would likely be prosecuted under the contested statute if he continued handbilling. The court noted that the threat of imminent arrest was corroborated by the actual arrest and prosecution of his handbilling companion. Id. at 459 , 94 S.Ct. 1209 . Steffel , however, is distinguishable from this case because there was no dispute about the authority of the local prosecutor, who was one of the named defendants, to prosecute violations of the contested statute.

With respect to Local 226’s claim that it suffered a concrete injury because the attorney general’s threat to enforce the statute herself chills its speech, the record indicates that Local 226 did not stop hand-billing completely. Rather, it stopped distributing the initial handbill regarding Commercial Bank after receiving the March 14 letter but began distributing another, different handbill on March 29, 1996, five days before the district court issued the TRO. The record does not indicate what information was contained in this new handbill regarding Commercial *624 Bank. Yet, on the same day that it began distributing the new handbill, Local 226 stated that it intended to revise the original handbill to reflect the fourth quarter results of Commercial Bank, apparently to prepare it for future distribution. Thus, unlike in Stejfel, where “genuine” threats of enforcement and the arrest of a hand-billing companion had the chilling effect of discouraging the plaintiff from engaging in any handbilling activity, the record does not demonstrate that the attorney general’s March 14 letter actually “chilled” Local 226’s exercise of its First Amendment rights with respect to distributing handbills about Commercial Bank’s financial condition. 2

Finally, the district court’s dismissal can be upheld on the separate ground that the Eleventh Amendment bars Local 226’s action against the attorney general. In actions challenging the constitutionality of a state statute and seeking injunctive or declaratory relief, the individual state official sued “must have some connection with the enforcement of the act” in order for the action to fall within Ex Parte Young’s exception to Eleventh Amendment immunity. Ex Parte Young, 209 U.S. at 157 , 28 S.Ct. 441 . In addition, that connection “ ‘must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.’ ” Snoeck, 153 F.3d at 986 (quoting Los Angeles Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)).

Although the majority found otherwise, I conclude that the attorney general lacks the necessary “connection with the enforcement” of the challenged statute. As discussed above, the attorney general has no authority under Nevada law to initiate criminal prosecutions for violations of NRS 668.105 and has only general supervisory power over the local district attorneys who are solely responsible for initiating such prosecutions. See NRS 228.120(2). Because the attorney general lacks such prosecutorial authority, her threat of enforcement alone is not sufficient to establish the connection with enforcement required to overcome Eleventh Amendment immunity. See Snoeck, 153 F.3d at 987 (because the defendant Commission on Judicial Discipline has no enforcement power under Nevada law, “it has no connection to the enforcement of the challenged law as required under Ex Parte Young”); Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir.1992) (stating that Ex Parte Young requires both a connection with enforcement and a threat of enforcement).

The judgment of the district court should be affirmed.

. It should be noted, however, that in extreme cases, the judge of a proper court may require all available evidence be delivered to the attorney general for prosecution if the district attorney refuses to prosecute. NRS 173.065.

. There is no support in the record for Local 226's representation in its brief that it has not distributed any handbills concerning Commercial Bank since the TRO was dissolved.