Petition for Writ of Certiorari — Sierra Club v. City of San Antonio

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“97-512 SEP 1 8 1997

No. ___QEFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

SIERRA CLUB,

Petitioner,

VS.

CITY OF SAN ANTONIO, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Struart N. HENry ReENEA Hicxs*

Davip O. FREDERICK Gary L. Lewis

Myron Hess GEORGE, DONALDSON &

Ketty HARAGAN Forp, L.L.P.

Henry, LOWERRE, JOHNSON, 1100 Norwood Tower

Hess & FREDERICK 114 West Seventh Street

202 West 17th Street Austin, Texas 78701

Austin, Texas 78701 (512) 495-1400

(512) 479-8125 Fax: (512) 499-0094

Fax: (512) 479-8269 * Counsel of Record

September 18, 1997 Attorneys for Petitioner

Sierra Club

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

OLS Ae ee ae a A

QUESTIONS PRESENTED FOR REVIEW

Under 16 U.S.C. 1540(g), federal district courts “shall

have jurisdiction” over citizen suits to enforce such provi-

sions of the Endangered Species Act as the prohibition

against the “take” of federally-listed endangered species.

1. May enforcement of federal statutory private

rights of action, such as the citizen-suit provision of the

Endangered Species Act, be prevented by judicial cre-

ation of a new form of mandatory abstention, applicable

even when the federal right is unenforceable in the state

forum?

2. Does appeal of a preliminary injunction expand

appellate jurisdiction so that a district court refusal to

abstain that is unappealable under Gulfstream Aerospace

Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), nonetheless

becomes appealable?

LIST OF PARTIES

APPELLANTS

City of San Antonio and San Antonio Water System

Bexar Metropolitan Water District

Redland Stone Products Co.

Southwest Research Institute

United Services Automobile Association

City of Hondo

City of Leon Valley

City of Uvalde

APPELLEES

Sierra Club

New Braunfels Utilities

INTERVENOR

United States

MR intniceisconiits ac So se

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

Ler Ce Pes .............. ea SEES ES ii

ae cove kook ssnkcd iii

We Oe Ai ooo do avec iv

ne IN 2 oo es 1

ee uk 1

STATUTES INVOLVED IN THE CASE............. 1

(EY hc dr eg eS SA ii are leg ao ae te Aa 1

ee Bs eal Paw a wib die Pied woe bile & Reklck 2

Grater O8 THe CASE....<.............055.: 5

REASONS FOR GRANTING THE WRIT ........... 13

I. The Fifth Circuit’s requirement of abstention

conflicts with controlling authority from this

Court, and its application of the abstention fac-

tors is in conflict with their application in other

PRE Ci Dui Ng ken evi iaa be ah ead ook s Vo as ipa. sae

II. An appeal from the grant of a preliminary

injunction does not give the appellate court juris-

diction over the district court’s denial of a

Pe Pe rer tity ae or are 20

MTT an iden nek veh i xy ou Rabhs ch eee ces bs 22

TABLE OF AUTHORITIES

Cases CITep:

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)....... 13

Allen v. State Board of Elections, 393 U.S. 544 (1969) .... 17

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 115 S.Ct. 2407 (2995). 0 os eer eccnese. 7

Barshop v. Medina County Underground Water Con-

servation District, 925 S.W.2d 618 (Tex. 1996) ....... 9

Bennett v. Spear, 117 S.Ct. 1154 (1997) ........ 13, 18, 19

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ...... passim

Cannon v. University of Chicago, 441 U.S. 677 (1979) .... 17

Chisom v. Roemer, 501 U.S. S80 (1991). ... 0c cc cee ees 17

Ciinton @.. fones, 117 SAA. 1656 (1997)... oo ci vane 21

Deckert v. Independence Shares Corp., 311 U.S. 282

CON ic pasos ck bg asks bee e ks eee Ana ee eds 21

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)...... 14, 21

Fragoso v. Lopez, 991 F.2d 878 (ist Cir. 1993)......... 18

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

UI ee SED ds Akw he REE nicola hEA dea Aas d 14, 20

IDS Life Insurance Co. v. Sunamerica, Inc., 103 F.3d

ee CFE Re PS ccd baka edacssece can eusins ene 22

New Orleans Public Service, Inc. v. Council of the

City of New Orleans, 491 U.S. 350 (1989)........ 15, 17

Pickens v. Hollowell, 59 F.3d 1203 (11th Cir. 1995).... 22

DEE RRS LAD

TABLE OF AUTHORITIES - Continued

Page

Quackenbush v. Allstate Insurance Co., 116 S.Ct.

Sg | BRR ear Co rein Pe 15

Sierra Club v. Babbitt, No. MO-91-CA-069 (W.D.

WD isis ape 6 0s kh 6

Sierra Club v. Babbitt, No. 94-50260 (5th Cir. Oct.

IO AUPE Meech ss bhi veung eavial skeen. 6

Sierra Club v. City of San Antonio, 112 F.3d 789 (5th

GO BOER oa ks Gh ser cee Lace Le 1

Sierra Club v. City of San Antonio, 118 F.3d 1580

YUEN Well EM cag sb 55 babs bee ba 0h ne Wee een 1

Swint v. Chambers County Commission, 115 S.Ct.

ah Co gt Be OE eee tla ad Seg Ma, 24; Ze

Tennessee Valley Authority v. Hill, 437 U.S. 153

SL | GRRE IES AUR RE aE AND RT Ns RES 15, 16, 17

United States v. Adair, 723 F.2d 1394 (9th Cir. 1983),

cert. denied, Oregon v. United States, 467 U.S.

SS? pg Coline gah Rescues teary cw as Onan ta 18

Statutes CITED:

Education Amendments of 1972, Title IX............ 17

Endangered Species Act of 1973, as amended, 16

RP eRe: marae LIPO 6g oko ici bs Kewend.. 1

cabs dee cee EET EEO OC Cae BNO eaten. 2

PF Alea MAE ab FRE ees nba ha Re ee 1

EN BANS ed Na EXE aK SRT ee 20

oe CLE. ROP i is ene h iN 0badd cc cek eka tee ee 20

TABLE OF AUTHORITIES - Continued

Page

1 USS. TIS 66 ai dc Oa eee 21

Voting Rights Act of 1965, as amended ............. 17

Edwards Aquifer Act, 73rd Leg., R.S., ch. 626,

1993 Tex. Gen. Laws 2350, as amended, 74th

Leg., R.S., ch. 261, 1995 Tex. Gen. Laws 2505 ...... 2

PEE whe dc cteidatgaceteveseceueseueiErseueewiass 3

Dib kd Fac kuh One Od Ev eee ciok beeen KPmaea tata 3

eee ENS 6s Sache a aus bib ORs RAE Oe aed Seared 4

rn ns a ES ot seve we weak ws ame hee ek ee 4

OTHER MATERIAL:

22 Tex. Reg. 13935-1405 (Feb. 7, 1997)........00csccese 9

22 Tex. Reg. 1648-1671 (Feb. 11, 1997).............00: 9

| cine

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 112 F.3d 789 (5th Cir. 1997),

and reproduced at App. 1-App. 30. The Fifth Circuit's

denial of rehearing and suggestion for rehearing en banc

is reported at 118 F.3d 1580 (Table), and reproduced at

App. 31-App. 32. The opinion and orders of the United

States District Judge for the Western District of Texas,

Midland-Odessa Division, are not reported in the official

i reporters; the five of them relevant here are at App. 33-

App. 62.

JURISDICTION

The opinion of the Fifth Circuit issued on April 30,

1997. App. 1. The Fifth Circuit denial of panel rehearing

and of the suggestion for rehearing en banc issued on

June 20, 1997. App. 31. The Court's jurisdiction is invoked

under 28 U.S.C. 1254(1).

STATUTES INVOLVED IN THE CASE

Federal

The Endangered Species Act of 1973, as amended, 16

| U.S.C. 1531-1544 (1994), provides in relevant part:

;

(1) Except as provided in paragraph (2) of this

: subsection any person may commence a civil

; suit on his own behalf . . . to enjoin any person,

including the United States and any other gov-

ernmental instrumentality or agency (to the

extent permitted by the eleventh amendment to

the Constitution), who is alleged to be in viola-

tion of any provision of this chapter or regula-

tion issued under the authority thereof[.]

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce any such

provision or regulation, or to order the Secretary

to perform such act or duty, as the case may be.

16 U.S.C. 1540(g).

State

The Edwards Aquifer Act, 73rd Leg., R.S., ch. 623,

1993 Tex. Gen. Laws 2350, as amended, 74th Leg., R.S., ch.

261, 1995 Tex. Gen. Laws 2505, provides in relevant part:

The legislature finds that the Edwards Aquifer

is a unique and complex hydrological system,

with diverse economic and social interests

dependent on the aquifer for water supply. In

keeping with that finding, the Edwards Aquifer

is declared to be a distinctive natural resource in

this state, a unique aquifer, and not an under-

ground stream. To sustain these diverse inter-

ests and that natural resource, a special regional

management district is required for the effective

control of the resource to protect terrestrial and

aquatic life, domestic and municipal water sup-

plies, the operation of existing industries, and

the economic development of the state. Use of

water in the district for beneficial purposes

requires that all reasonable measures be taken to

be conservative in water use.

§ 1.01

The legislature finds that the water in the

unique underground system of water-bearing

formations known as the Edwards-Balcones

Fault Zone Aquifer has a hydrologic interrela-

tionship to the Guadalupe, San Antonio, San

Marcos, Comal, Frio, and Nueces river basins, is

the primary source of water for the residents of

the region, and is vital to the general economy

and welfare of this state. The legislature finds

that it is necessary, appropriate, and a benefit to

the welfare of this state to provide for the man-

agement of the aquifer through the application

of management mechanisms consistent with our

legal system and appropriate to the aquifer sys-

tem.

§ 1.06(a).

Authorizations to withdraw water from the

aquifer and all authorizations and rights to

make withdrawal under this Act shall be limited

in accordance with this section to:

(1) protect the water quality of the aquifer;

(2) protect the water quality of the surface

streams to which the aquifer provides spring-

flow;

(3) achieve water conservation;

(4) maximize the beneficial use of water

available for withdrawal from the aquifer;

(5) protect aquatic and wildlife habitat;

(6) protect species that are designated as

threatened or endangered under applicable fed-

eral or state law; and

(7) provide for instream uses, bays, and

estuaries.

To accomplish the purposes of this article, by

June 1, 1994, the authority, through a program,

shall implement and enforce water management

practices, procedures, and methods to ensure

that, not later than December 31, 2012, the con-

tinuous minimum springflows of the Comal

Springs and the San Marcos Springs are main-

tained to protect endangered and threatened

species to the extent required by federal law... .

§ 1.14(a) & (h).

The authority may assess an administrative pen-

alty against a person who violates this article or

a rule adopted or order issued under this arti-

- oe

Judicial review of the order of the authority:

(1) is instituted by filing a petition as pro-

vided by Section 19, Administrative Procedure

and Texas Register Act. . . ; and

(2) is under the substantial evidence

All proceedings under this section are subject to

the Administrative Procedure and Texas Regis-

ter Act...

§ 1.37(a), (n), & (r).

ee ee ae Oe nok fe Be Peat Pearl

STATEMENT OF THE CASE

A federally-listed endangered species — the fountain

darter (Etheostoma fonticola) — lives at the mouth of two of

the largest natural springs in Texas and the entire south-

western United States.! Lying in Central Texas between

Austin and San Antonio, Comal Springs in New

Braunfels and San Marcos Springs in San Marcos are

surface outcroppings of a 175-mile long underground

water formation known as the Edwards Aquifer. The land

overlying the Aquifer hosts a burgeoning population; San

Antonio alone is one of the ten largest cities in the coun-

try.

San Antonio and the other defendant local political

subdivisions, industries, and private commercial interests

pump hundreds of millions of gallons of water daily from

the Edwards Aquifer; they use it for such purposes as

industrial production processes, drinking water, lawn

and golf course watering, and agricultural production.

San Antonio, which has not developed any surface water

supplies, is the largest volume Aquifer pumper. App. 53.

As the area grows, pressures on the Aquifer mount; it

is being depleted, or “mined.” The trial court determined

that the amount of water taken by withdrawals and

springflows from the Aquifer for each of the three years

prior to this lawsuit (1993-1995) exceeded total recharge.

1 The springs are the habitat for three other endangered

species (San Marcos gambusia, Texas blind salamander, and

Texas wild rice) and a threatened one (San Marcos salamander).

These springs support tourism and scientific research critical to

the area economy. App. 42.

App. 42.2 “[E]ach year, the Aquifer continues to drop

lower and lower and never regains the volume it held the

previous year.” App. 59.

The natural resource problems associated with over-

pumping of the Edwards Aquifer might have remained

confined to the realms of state public policy but for the

fact that the endangered fountain darter’s habitat was the

Comal and San Marcos Springs. The darter’s continued

existence as a species depends on flows from those

springs remaining above a certain level. App. 52 (“endan-

gered species are dying as the result of the low spring-

flows”). These facts led the Sierra Club to file its citizen

enforcement suit under Section 9 of the Endangered Spe-

cies Act (“ESA”) against San Antonio and other large

Aquifer pumpers in the summer of 1996.3 The Sierra Club

raised no state law claims and sued no state regulatory

bodies or officials for their actions. The suit’s central

objective was to reduce overpumping from the Aquifer so

that the endangered fountain darter’s habitat would be

2 The presiding trial judge had acquired considerable

technical familiarity with operation of the Aquifer from having

presided over an earlier Endangered Species Act suit against the

Secretary of Interior to force development of a recovery plan for

endangered and threatened species dependent on the Aquifer

for habitat. App. 4 (citing Sierra Club v. Babbitt, No. MO-91-

CA-069 (W.D. Tex.)). An appeal from the trial court’s rulings in

that case ended with a mootness determination by the Fifth

Circuit in light of publication of a revised recovery plan by the

U.S. Fish and Wildlife Service. App. 4 (citing Sierra Club v.

Babbitt, No. 94-50260 (5th Cir. Oct. 18, 1995)).

3 The Sierra Club asserted a claim under § 7 of the ESA

against the U.S. Department of Defense, which operates military

bases in the area, but that claim is not involved in this petition.

tt AT ae LL pe AE NIE than BR NaI

maintained, meaning that Comal and San Marcos Springs

would not drop below levels the Fish and Wildlife Service

had determined were necessary to sustain the species and

protect individual members of the species from harm due

to habitat destruction.* The central mechanism for achiev-

ing the objective was to tie permitted Aquifer pumping to

springflow levels, proportionately increasing or decreas-

ing pumping commensurate with springflow levels. As

springflows dropped, pumping would be reduced and

vice-versa.

The model for the Club’s ESA claim was the Court’s

thematic “drained pond” illustration in Babbitt v. Sweet

Home Chapter of Communities for a Great Oregon, 115 S.Ct.

2407 (1995), which upheld the Secretary of Interior’s reg-

ulation making habitat modification part of the ESA’s

definition of an illegal “take.” There, the Court explained

the paradigm of an illegal ESA “take” as “when an actor

knows that an activity, such as draining a pond, would

actually result in the extinction of a listed species by

destroying its habitat.” 115 S.Ct. at 2414; see also 115 S.Ct.

at 2414-15 n. 15 (same image); 115 S.Ct. at 2420 (O’Con-

nor, J., concurring).

After an evidentiary hearing, the trial court deter-

mined to issue an injunction:

The Court is soundly convinced that an emer-

gency presently exists and takes of endangered

species are occurring.

* These levels are called, respectively, the “jeopardy” and

“take” levels. At the time of trial on the preliminary injunction,

both springs had been continuously below these federally-

established levels for some time. App. 56.

App. 41. Less than a week later, the trial court reiterated

its determination, in response to stay requests from some

of the Aquifer pumpers:

The significant habitat modification and degra-

dation caused by over-pumping from the

Edwards Aquifer has indeed harmed the

Edwards dependent endangered species and

amounts to a take.

[S]pringflow remain below the jeopardy and

take levels established by USF&W.

App. 52; App. 56 (footnote omitted).

Adopting the basic approach urged by the Sierra

Club, the court tied its injunction to these findings that

violations of the ESA’s “take” prohibitions were occur-

ring with regard to the fountain darter. Using winter

pumping rates for the various pumpers as a baseline, the

court imposed a series of tiered pumping rules keyed to

springflows. App. 44. At high flows, pumping was unre-

stricted; at lower flows, it was restricted to a certain

varying percentage above the winter rate. The lowest

pumping rate was to be 1.2 times the winter average

when Comal springflow dropped below 175 cubic feet

per second. Id. The court delayed the effectiveness of its

injunction so that none of these restrictions was to be

triggered until October 1, 1996, more than a month after

issuance of the injunction. App. 49.5

5 The Fifth Circuit stayed the injunction before it ever came

into force. App. 6.

;

Both before and immediately after issuance of the

injunction, the district court considered and rejected

requests that it abstain from enforcement of the ESA.

App. 33-36; App. 56-57. The Aquifer pumpers had urged

that the district court step aside from the ESA suit in

deference to a newly-created state regulatory body called

the Edwards Aquifer Authority (“EAA”), even though

that body had no jurisdiction over an ESA suit and even

though there was no known way by which the Sierra

Club could gain official party status before that state

body.

The Texas legislature had created the EAA as a

regional body in reaction to the earlier Sierra Club endan-

gered species suit against the Secretary of Interior. See fn.

2, above. The EAA had only just begun operation, having

overcome a state constitutional challenge from local

water interests only two days before the district court’s

evidentiary hearing; it had no substantive rules in place

and no pending adjudicative administrative proceed-

ings.°

The district court emphasized the tentative nature of

its refusal to abstain because of the existence of the

fledgling EAA, expressing its “hope” that the EAA will

Conservation District, 925 S.W.2d 618 (Tex. 1996). To this day,

there has never been an adjudicative administrative proceeding

of any sort before the EAA. It did not even put basic

administrative and regulatory rules into effect until February of

1997, more than a half year after issuance of the injunction. See

22 Tex. Reg. 1393-1405 (Feb. 7, 1997) (permit application

processing rules); 22 Tex. Reg. 1648-1671 (Feb. 11, 1997) (interim

critical period management rules).

act on the resource problem and explaining that it might

abstain were the EAA to take meaningful action. App. 41;

App. 56. Still, the court honored formal legislative policy

and determined that “[{ujntil that time, it is the duty of

this Court to follow Congress’s directive that the endan-

gered species and their critical habitat be protected.”

App. 42. The court further delineated its duty to observe

the Article III jurisdiction with which Congress had

invested it and the point at which that duty would be

discharged: “Abstaining at this juncture would require

this Court to ignore Congress’s federal statutory mandate

as evidenced in the ESA. Until or unless the EAA is

watching over the Edwards dependent endangered spe-

cies, this Court will not abstain.” App. 56-App. 57.

A divided panel of the Fifth Circuit held that absten-

tion was required in this circumstance and vacated the

district court injunction on that ground, without address-

ing the other issues raised on appeal. Relying on Burford

v. Sun Oil Co., 319 U.S. 315 (1943), the two-member major-

ity read the Edwards Aquifer Act as establishing a “com-

prehensive regulatory scheme,” App. 9, concerning water

resources that are “a matter of great state concern,” App.

10. The court observed a “need for unified management

and decision-making regarding the aquifer[.]” App. 11.

With a passing nod to its own precedents holding that

Burford abstention is disfavored when only federal claims

are raised, App. 13, the court nonetheless chose the oppo-

site course, noting that Burford itself involved a constitu-

tional “due process of law” claim: “If abstention is

warranted when the plaintiff is claiming a violation of his

constitutional rights, then surely it is also warranted

where the plaintiff claims a federal statutory violation.”

App. 14.

Relying on post-appeal filings, the court indicated

that the EAA had moved from being in the “process” of

taking comments and formulating rules to beginning

operations. App. 14. In the court’s view, Burford absten-

tion applies even before a state regulatory scheme is

“fully in place.” App. 15.

The majority acknowledged the accuracy of the

Sierra Club’s argument that the state’s Edwards Aquifer

Act “does not provide any state court judicial review for

a plaintiff such as itself.” App. 16. The court’s response

was that a federal citizen-suit plaintiff could lose its

federal statutory right altogether under Burford absten-

tion and even be excluded entirely from a deferred-to

state proceeding. After all, the court observed, either the

EAA or the state’s main environmental agency could

proceed with some kinds of state court actions in connec-

tion with EAA activities. App. 16-App. 17. Burford absten-

tion, said the court, applies even if the federal plaintiff

does not have a “private, judicial cause of action under

the state regulatory scheme[.]” App. 17. The Fifth Circuit

did not address in this context the failure of the Edwards

Aquifer Act to concentrate judicial review or related pro-

ceedings concerning the EAA in a centralized set of state

courts; under the statute, such proceedings are not con-

centrated in any particular set of state courts.

The court looked to the ESA to see if it contained

language prohibiting abstention and, finding none, con-

cluded that the statute was thus no bar to abstention,

even though the ESA stated jurisdiction in imperative

terms (“shall have jurisdiction”). App. 19. Finally, in light

of the fact that the EAA was engaged in nothing more

than formal rulemaking, the court held that Burford “does

not require the existence of an ongoing state proceeding

with which the federal court action directly interferes.”

App. 19.

There was a vigorous dissent by Judge Benavides,

with a methodical treatment of the rationale for Burford

abstention. App. 20-App. 30. He viewed Burford as inap-

plicable “[b]ecause the administrative scheme enacted by

the State of Texas does not afford adequate judicial

review of the Sierra Club’s federal claim[.]” App. 20.

After noting that this Court had required Burford absten-

tion in only two cases since the doctrine’s inception (one

of those being Burford itself), App. 22, the dissent found

the abstention argument “flatly inconsistent with a gov-

ernmental system in which federal law is supreme.” App.

29. It was, posited Judge Benavides:

nothing more than a plea for this court to abro-

gate its duty to enforce a federal right granted to

private citizens by Congress because doing so

would potentially conflict with important local

interests.

App. 28-App. 29. For these reasons, Judge Benavides

found the Burford doctrine inapplicable and dissented

from its invocation.

Re RATE TAT EIR

ap a Re earth See x Nah

REASONS FOR GRANTING THE WRIT

The Fifth Circuit has upended federalism, setting in

motion an unacceptable principle of “reverse” preemp-

tion”? that, left undisturbed, prohibits federal court

enforcement in the Fifth Circuit of all Congressionally-

created private rights of action that touch on areas subject

to state regulation, whether implemented or not. The

principle, though dressed in the federalism garb of

abstention, is a rejection of the Supremacy Clause that

applies to a host of important federal statutory rights.

Further, and at least as disturbing because of separation

of power concerns, the principle usurps Congressional

power by using a judge-made doctrine to override a

statutory right Congress conferred on citizens.

Even limited to the Endangered Species Act, the Fifth

Circuit ruling has important national implications. Only

this year, this Court has characterized the citizen-suit

provision at issue in this case as “an authorization of

remarkable breadth” reflecting a congressional decision

“to permit [ESA] enforcement by everyman[.]” Bennett v.

Spear, 117 S.Ct. 1154, 1162-63 (1997) (unanimously hold-

ing that those seeking to prevent application of environ-

mental restrictions have standing under § 1540(g)). The

Fifth Circuit’s decision truncates the reach of the very

ESA citizen-suit provision this Court has said “covers all

private violations of the Act,” 117 S.Ct. at 1163 (emphasis

added). The statute is an important and powerful compo-

nent of the Congressional environmental arsenal, and the

7 Adams Fruit Co. v. Barrett, 494 U.S. 638, 648 (1990) (holding

that state law cannot displace federal law).

citizen-suit provision in turn is an important and power-

ful component of the ESA. Whether the Fifth Circuit's

unique abstention doctrine can effectively blunt Spear’s

ESA standing rule raises a question important to the

administration of federal justice, of which citizen-suits

are an important part, by Congressional design.

Compounding the disturbing ramifications of the

Fifth Circuit rationale, the Fifth Circuit has curtailed fed-

eral district court jurisdiction through an expansion of

federal appellate jurisdiction. Under Gulfstream Aerospace

Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), district

court abstention denials are not appealable inter-

locutorily; yet, by treating the abstention issue as an

aspect of the “likelihood of success” element of the pre-

liminary injunction four-part inquiry, the Fifth Circuit has

performed an end-run around Mayacamas that is at odds

with this Court’s careful separation of the abstention

inquiry from the “likelihood of success” inquiry in the

preliminary injunction appeal in Doran v. Salem Inn, Inc.,

422 U.S. 922, 931-32 (1975), and the Court’s restrictive

treatment of pendent appellate jurisdiction in Swint v.

Chambers County Commission, 115 S.Ct. 1203 (1995).

THE FIFTH CIRCUIT’S REQUIREMENT OF ABSTEN-

TION CONFLICTS WITH CONTROLLING AUTHOR-

ITY FROM THIS COURT, AND ITS APPLICATION OF

THE ABSTENTION FACTORS IS IN CONFLICT WITH

THEIR APPLICATION IN OTHER CIRCUITS.

The Fifth Circuit’s abstention ruling is inconsistent

with guiding precedent from this Court. First, the very

premise of the abstention doctrine is that the relief being

ere eet es

sought must be discretionary. Quackenbush v. Allstate

Insurance Co., 116 S.Ct. 1712, 1728 (1996) (abstention

authority “only where the relief being sought is equitable

or otherwise discretionary”); see also Quackenbush, 116

S.Ct. at 1728 (Scalia, J., concurring) (no affront to federal-

ism whenever Congress “instructs federal courts to assert

jurisdiction over matters as to which relief is not discre-

tionary”). In the seminal ESA case of Tennessee Valley

Authority v. Hill, 437 U.S. 153 (1978), the Court bowed to

the powerful congressional statement of the ESA’s pur-

pose (describing the “incalculable” value of saving

endangered species) and determined that the usual judi-

cial authority to engage in equitable balancing had been

congressionally overridden in the ESA:

Congress has spoken in the plainest of words,

making it abundantly clear that the balance has

been struck in favor of affording endangered

species the highest of priorities, thereby adopt-

ing a policy which it described as “institu-

tionalized caution.”

437 U.S. at 194.

Thus, the discretion that is prerequisite to application

of the abstention doctrine, and without which federal

courts lack authority to avoid enforcement of congres-

sional directives, is absent in this ESA private right of

action case. The Fifth Circuit’s abstention ruling is in

conflict with this Court’s ruling in TVA v. Hill. See also

New Orleans Public Service, Inc. v. Council of the City of New

Orleans, 491 U.S. 350, 358-59 (1989) (“NOPSI”) (“Con-

gress, and not the Judiciary, defines the scope of federal

jurisdiction within the constitutionally permissible

bounds”).

Even if TVA v. Hill's reading of the ESA is set aside,

however, and some discretion is found to reside in the

federal courts related to enforcing the ESA “take” prohi-

bition where it is being violated, the Fifth Circuit’s

abstention ruling remains in conflict with governing

authority from this Court. In NOPSI, the Court re-empha-

sized that abstention is the exception not the rule. 491

U.S. at 359.8 Emphasizing that no state-law claim was

involved, the Court explained in NOPSI that the mere

existence of a complex state administrative process does

not require abstention, nor does the potential for conflict

with state regulatory law or policy. 491 U.S. at 362. Fur-

ther, the Court highlighted the fact that the federal pro-

ceeding did not involve the details of administration of

the state regulatory scheme, only a four-corner review of

the administrative ruling. 491 U.S. at 362-63.

Here, as in NOPSI, the state administrative process is

not directly implicated; it exists but that is all as far as the

federal issue is concerned. Similarly, as in NOPSI, any

potential for conflict with the Texas regulatory scheme is

at best theoretical. And unlike in NOPSI, no ruling or

order of the EAA need be construed at all to decide the

ESA question. There had been — and has been —- no

administrative adjudication by the EAA of anything, and

its post-injunction rules were neither interpreted nor

enjoined by the district court’s injunction. Consideration

of the consequence of some hypothetical future conflict

between potential ESA judicial remedies and EAA regula-

tion is premature.

8 As here, NOPSI came from the Fifth Circuit, whose ruling

in favor of Burford abstention this Court reversed.

eee

Nea

I EO SE ee oe. ee

Furthermore, even as it determined Burford absten-

tion improper, NOPSI assumed adequate and timely state

court review was available to the federal claimant. 491

U.S. at 361. That sine qua non of Burford abstention is

wholly absent in this case.

The Fifth Circuit ruling, as ably demonstrated by the

dissent, is without precedent, bereft of any supporting

authority from this Court, and in conflict, at a minimum,

with TVA v. Hill and NOPSI. But it is more than a legal

derelict. The legal rationale underpinning it threatens

enforcement in the Fifth Circuit territory of numerous

other private rights of action, both in environmental

arenas beyond ESA confines (such as clean air and clean

water) and in other fields where Congress has created a

statutory private right of action that touches on state-

regulated activity. For example, the Court has recognized

private rights of action under such important Congres-

sional anti-discrimination statutes as Title IX of the Edu-

cation Amendments of 1972, see Cannon v. University of

Chicago, 441 U.S. 677 (1979), and §§ 2 and 5 of the Voting

Rights Act of 1965, as amended, see Chisom v. Roemer, 501

U.S. 380 (1991) (§ 2), and Allen v. State Board of Elections,

393 U.S. 544 (1969) (§ 5). The Fifth Circuit’s abstention

principle threatens private citizen enforcement of these

critical civil rights provisions. This threat lives even now

in the important region encompassed by the Fifth Circuit.

Its effect in this case is devastating. Though the rul-

ing came in the context of an appeal of a preliminary

injunction, it effectively terminates the litigation. The

abstention bar purports to leave open the possibility of

enforcement “if the State of Texas fails to” protect the

species. App. 17. Inasmuch as the Fifth Circuit found an

abuse of discretion by the district court in failing to

provide more opportunities for EAA action, and inas-

much as the district court, uncontradicted by the Fifth

Circuit, found an emergency existed, requiring immediate

action to avoid “takes” of endangered species, it is hard

to conceive of a situation where waiting for the state to

act will have been a long enough wait. Thus, the lower

court’s abstention ruling effectively forecloses the possi-

bility of enforcement of the Endangered Species Act by

the Sierra Club. Its practical effect is the same as a dis-

missal.

Beyond the Fifth Circuit in other statutory private

action contexts, and beyond the important contours of

this case, the Fifth Circuit ruling conflicts with applica-

tion of the Burford abstention doctrine by other circuits.

The Fifth Circuit rejected the argument that Burford

abstention is inapplicable if only federal claims are

raised. The Ninth Circuit, on the other hand, embraces

that position. United States v. Adair, 723 F.2d 1394, 1402 n.

5 (9th Cir. 1983), cert. denied sub nom. Oregon v. United

States, 467 U.S. 1252 (1984). The Fifth Circuit rejected the

position that, since nothing of the EAA was being

“reviewed,” Burford did not apply. The First Circuit, on

the other hand, has held that a state proceeding must be

under federal court review in order for Burford to apply.

Fragoso v. Lopez, 991 F.2d 878, 883 (1st Cir. 1993). Resolv-

ing these conflicts can help bring coherence to the frus-

tratingly amorphous Burford abstention doctrine.

The Fifth Circuit’s unprecedented contraction of the

broad citizen suit provision of the ESA functions as a pro

tanto contraction of the standing rule of Bennett v. Spear

and undermines the balance it established in the law’s

enforcement. Under the ruling under review, those who

resist application of federal environmental policies now

will be in a superior position. With standing as recog-

nized in Bennett v. Spear, those parties can virtually

always point to some state policy, and some state regula-

tory body, that would be directly or indirectly affected by

enforcement of the anti-take provisions of the ESA. If the

Fifth Circuit rule remains, they then can oust the trial

court of enforcement authority, regardless of the facts

salient to the endangered species. The plaintiffs pressing

for anti-take ESA enforcement will have been left with an

empty Congressional promise, emptied not by Congress

but by the courts through their own self-made rule. Bur-

ford abstention will have accomplished the judicial repeal

of the ESA private right of action.

Important issues are at stake here beyond the

Edwards Aquifer and the fountain darter: of a corrected

federalism; of a reinstituted Supremacy Clause; and of

federal judicial recognition that it must enforce Congres-

sional enactments that substantially reduce or eliminate

discretion. Leaving the Fifth Circuit’s misapplication of

the abstention doctrine unaddressed threatens unwar-

ranted harm to unsuspecting claimants under many vari-

eties of federal citizen suit provisions. Employing a

judicially-created doctrine whose doctrinal premise rests

in major part on the discretionary play in trial court joints

to deny that very discretion to the trial court is a funda-

mental misapplication of the doctrine. Appellate ham-

stringing of district courts in the service of discretion

contradicts the Court’s abstention principles.

Il.

AN APPEAL FROM THE GRANT OF A PRELIMINARY

INJUNCTION DOES NOT GIVE THE APPELLATE

COURT JURISDICTION OVER THE DISTRICT

COURT’S DENIAL OF A MOTION TO ABSTAIN.

In Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

U.S. 271 (1988), the Court held that denials of abstention

are not appealable interlocutorily either as final decisions

under 28 U.S.C. 1291 or as injunction rulings under 28

U.S.C. 1292(a)(1). The “inherently tentative” nature of

abstention denials formed the underpinning of the

Court’s conclusion:

In denying such a motion [for abstention], the

district court may well have determined only

that it should await further developments before

concluding that the balance of factors .. .

warrants a dismissal or stay.

485 U.S. at 278.

The Fifth Circuit nonetheless rationalized interlocu-

tory review of the abstention denial by treating absten-

tion as an element of a claimant’s likelihood of success on

the merits. This ruling flies in the face of the Court’s

Mayacamas rationale in a case in which the district court

repeatedly stressed that its abstention rulings were only

tentative. It evades the Mayacamas rule by conflating the

abstention decision with the preliminary injunction deci-

sion. App. 7-App. 8.

Until recently, there was a line of authority from this

Court that, though it did not address the precise question

here, might have been usefully employed by those seek-

ing to avoid Mayacamas’s clear holding. Cases such as

Deckert v. Independence Shares Corp., 311 U.S. 282 (1940),

occasionally authorized appending otherwise unappeal-

able interlocutory trial court decisions to preliminary

injunction appeals. As explained earlier, Doran v. Salem

Inn, 422 U.S. 922, indicates the inapplicability of this line

of authority in the context of abstention denials through

its separation of that issue from the preliminary injunc-

tion issue.?

But there is a more recent restriction on this Deckert-

style doctrine of pendent appellate jur’sdiction. Swint v.

Chambers County, 115 S.Ct. 1203, substantially narrowed

pendent appellate jurisdiction — though it did not elimi-

nate it entirely, see Clinton v. Jones, 117 S.Ct. 1636, 1651 n.

41 (1997). A central reason for this narrowing was the

Congressional expansion in 28 U.S.C. 1292(e) of this

Court’s rulemaking authority over the appeal of other-

wise unappealable interlocutory decisions. As explained

in Swint, expansion of appellate jurisdiction in this con-

text should come through the rulemaking route rather

than the case adjudication route, on the premise that the

statutory directive “warrants the Judiciary’s full respect.”

115 S.Ct. at 1211.

The Fifth Circuit expansion of its appellate jurisdiction

is at odds not only with Mayacamas, but also with Swint

and § 1292(e). Research has not revealed a decision by this

Court that countenances the jurisdictional expansion

accomplished by the Fifth Circuit. Especially since this

appellate jurisdictional expansion was in the service of an

unprecedented restriction of district court jurisdiction, the

? Doran dealt with Younger abstention.

issue warrants full and careful review by this Court in the

exercise of its supervisory powers over the lower courts.

_ Swint has left those courts with a great deal of uncer-

tainty about their appellate jurisdiction. See, e.g., IDS Life

Insurance Co. v. Sunamerica, Inc., 103 F.3d 524, 528 (7th Cir.

1996) (Posner, J.) (indicating that Swint had “thrown into

doubt” the whole concept of pendent appellate jurisdic-

tion); Pickens v. Hollowell, 59 F.3d 1203, 1208 (11th Cir.

1995) (stating that concept of pendent issue appellate

jurisdiction is “uncertain” in light of Swint). Resolution of

the appellate jurisdictional issue in this case would help

clarify the present uncertain state of court of appeals

jurisdiction.

CONCLUSION

For the foregoing reasons, this petition for writ of

certiorari should be granted.

Respectfully submitted,

Stuart N. Henry ReNEA Hicxs*

Davip O. FREDERICK Gary L. Lewis

Myron Hess GEORGE, DONALDSON &

Ketty HARAGAN Forp, L.L.P.

Henry, LOWERRE, JOHNSON, 1100 Norwood Tower

Hess, & FREDERICK 114 West Seventh Street

202 West 17th Street Austin, Texas 78701

Austin, Texas 78701 (512) 495-1400

(512) 479-8125 Fax: (512) 499-0094

Fax: (512) 479-8269 * Counsel of Record

September 18, 1997 Attorneys for Petitioner

Sierra Club

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-50636

(Filed Apr. 30, 1997)

SIERRA CLUB,

Plaintiff-Appellee,

versus

CITY OF SAN ANTONIO, ET AL.,

Defendants,

NEW BRAUNFELS UTILITIES,

Defendant-Appellee,

versus

CITY OF SAN ANTONIO, SAN ANTONIO

WATER SYSTEMS, CITY OF HONDO,

TEXAS, On Its Behalf and All Other

Municipal Industrial, Commercial, Domestic

and Livestock Pumpers in Medina, CITY

OF UVALDE, TEXAS, On Its behalf and All

Other Municipal, Industrial, Commercial,

Domestic and Livestock Pumpers in Uvalde

and Kinney Counties, CITY OF LEON

VALLEY, TEXAS, On Its Behalf and All

Other Municipal, Domestic and Livestock

Pumpers in Bexar and Atascosa Counties,

REDLAND STONE PRODUCTS COMPANY,

On Its Behalf and All Other Industrial and

Commercial Pumpers, SOUTHWEST

RESEARCH INSTITUTE, On Its Behalf and

All Other Industrial and Commercial

Pumpers in Bexar and Atascosa Counties,

App. 2

UNITED SERVICES AUTOMOBILE

ASSOCIATION, On Its Behalf and All Other

Industrial and Commercial Pumpers in

Bexar and Atascosa Counties, and BEXAR

METROPOLITAN WATER DISTRICT,

Defendants-Appellees.

Appeals from the United States District Court for

the Western District of Texas

Before REAVLEY, GARWOOD and BENAVIDES, Cir-

cuit Judges.

REAVLEY, Circuit Judge:

This appeal is taken from a preliminary injunction

entered by the district court to regulate the withdrawal of

water from the Edwards Aquifer, a large underground

reservoir supplying water to central Texas. Because we

hold that the Sierra Club did not establish a substantial

likelihood of success on the merits, in light of the absten-

tion doctrine enunciated in Burford v. Sun Oil Co.,1 we

vacate the injunction.

BACKGROUND

The City of San Antonio relies exclusively on the

Edwards Aquifer for its water. Other parts of central

Texas also rely on the aquifer as a primary source of

water. It supplies over one million people with water in

San Antonio alone.

1 319 U.S. 315 (1943).

App. 3

The aquifer discharges water into the Guadalupe

River Basin at the San Marcos and Comal Springs.

According to the Sierra Club the annual recharge of the

aquifer for several years has been exceeded by the annual

discharge (withdrawals plus springflow), causing the

aquifer level to fall each year. It claims that a continuation

of the status quo inevitably will either lead to the com-

plete drying up of the springs or render them intermit-

tent.

In the area of the San Marcos and Comal Springs, the

aquifer is home to five plant and animal species desig-

nated as endangered or threatened under the Endangered

Species Act.? Of the five, one - the fountain darter — is

found at Comal Springs. The fountain darter is an endan-

gered species.

In 1996 the aquifer suffered a severe drought. The

spring flow at Comal Springs fell from April through

June and then leveled off. In June of 1996, the Sierra

Club’s expert zoologist observed five or six “very thin”

fountain darters in the uppermost spring run of Comal

Springs. The Sierra Club claims that it presented direct

evidence of fountain darter deaths, injuries in the form of

emaciation, and a scarcity of young fountain darters due

to the low spring flows, and that there is a causal link

between the low spring flows and defendants’ pumping

of water from the aquifer. San Antonio’s hydrology

expert stated that he did not anticipate further declines in

the water levels after August 1, 1996, and that the water

level would rise in the fall.

2 16 U.S.C. §§ 1531-44.

App. 4

In a prior suit, Sierra Club v. Babbitt,> filed in 1991 in

the same district court, the Sierra Club sued the Secretary

of the Interior and the United States Fish and Wildlife

Service under the Endangered Species Act. The suit

claimed that the Fish and Wildlife Service had failed to

adopt an “adequate recovery plan” under that Act. This

suit lasted five years, and included several appeals to the

Fifth Circuit. In one appeal our court recognized absten-

tion concerns, and particularly Burford abstention, as

sometimes calling for federal court abstention “to allow

the state’s comprehensive regulatory scheme to operate

without the risk of competing attempts between that

regulator and the federal courts to exercise control over

the same entity.”* On remand, the district court declined

to abstain, because at the time the Edwards Aquifer Act5

(described below) had been declared unconstitutional.

The court reasoned that there was no competing state

regulatory system in place that would make abstention

appropriate under Burford. In 1996 this court ordered the

Babbitt suit dismissed as moot after the Fish and Wildlife

Service published a revised recovery plan.

The Sierra Club brought the pending suit in June of

1996 under the Endangered Species Act. The complaint,

seeking certification of a defendant class, alleges that

defendants are “taking” endangered species in violation

3 No. Mo-91-CA-069 (W.D.Tex.).

4 Sierra Club v. Babbitt, No. 94-50260 (5th Cir. Oct. 18, 1995),

at 6.

5 Act of May 30, 1993, 73d Leg., R.S., ch. 626, 1993 Tex. Gen.

Laws 2355, as amended by Act of May 29, 1995, 74th Leg., R.S., ch

261, 1995 Tex. Sess. Law Serv. 2505.

App. 5

of the Endangered Species Act. The complaint seeks to

enjoin defendants “to reduce withdrawals from the

Edwards by such levels as are necessary to maintain

minimum natural springflows from the Comal and San

Marcos Springs for the conservation and survival of the

endangered and threatened species living at and down-

stream from those springs.” The named defendants

include San Antonio and numerous other governmental

and private entities.

In 1993 the Texas Legislature enacted the Edwards

Aquifer Act, creating a regulatory scheme to control and

manage the use of the aquifer. An administrative body,

the Edwards Aquifer Authority, was created to oversee

this regulatory scheme. A state district court ruled the

Act unconstitutional, but in 1996 the Texas Supreme

Court unanimously upheld the facial constitutionality of

the Act. Barshop v. Medina County Underground Water Con-

servation Dist., 925 S.W.2d 618 (Tex.1996). The federal

district court, in the Babbitt case, recognized that if the

Texas Supreme Court were to uphold the constitutionality

of the Edwards Aquifer Act, “this Court would do every-

thing in its power to allow the [Authority] to function

and nothing that would frustrate the [Authority].”

Shortly after the present suit was filed the Texas

Supreme Court ruled in the Barshop case. San Antonio

and other defendants moved to dismiss the suit on Bur-

ford abstention grounds. The Sierra Club moved for a

preliminary injunction. After a one-day evidentiary hear-

ing, the court denied the motion to dismiss and entered

6 See 16 U.S.C. § 1538(a)(1)(B).

App. 6

the preliminary injunction now on appeal.”? The court

concluded that “an emergency presently exists and takes

of endangered species are occurring,” and that “[w]ithout

a fundamental change in the value the region places on

fresh water, a major effort to conserve and reuse Aquifer

water, and implemented plans to import supplemental

supplies of water, the region’s quality of life and eco-

nomic future is imperiled.” The court incorporated by

reference a “1996 Emergency Withdrawal Reduction

Plan,” which provides for comprehensive regulation of

pumping from the aquifer.

In its order granting the injunction the court did not

immediately impose the Emergency Withdrawal Reduc-

tion Plan, but did order limitations on pumping based on

spring flows, the effect of which was that the municipal

defendants were limited to water use of 1.2 times their

winter usage. The court found that the Edwards Aquifer

Authority “has a great learning curve to overcome before

it is ready to manage the Aquifer.” It ordered that the

injunction remain in effect until the defendants can dem-

onstrate that a critical management plan by the Edwards

Aquifer Authority that will preserve endangered species

is operative. It also ordered the parties to supply the

court and a special master with monthly water usage

information and all other information “necessary to keep

the Court informed as to compliance with this Order.”

7 This court has stayed the injunction pending appellate

review.

App. 7

DISCUSSION

The party seeking a preliminary injunction must

establish: (1) a substantial likelihood of success on the

merits, (2) a substantial threat that failure to grant the

injunction will result in irreparable injury, (3) that the

threatened injury outweighs any damage that the injunc-

tion will cause the opposing party, and (4) that the injunc-

tion will not disserve the public interest.* The decision to

grant or deny a preliminary injunction is reviewed for

abuse of discretion.? Likewise, we generally review

abstention decisions under an abuse of discretion stan-

dard.1°

The Sierra Club contends that the district court’s

decision not to abstain under Burford is not properly

before us on appeal, but we find no merit to this argu-

ment.!! The issue before us is not the ultimate question of

8 Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991).

9 Id.

10 American Bank and Trust Co. of Opelousas v. Dent, 982 F.2d

917, 922 n. 6 (5th Cir.1993).

11 The Sierra Club argues that an order denying abstention

is not appealable under Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271 (1988), and that the defendants are

attempting an “end run” around this rule by treating their

abstention argument as an appeal of an order granting an

injunction. There is no merit to this argument. Whether the

court should have abstained goes directly to whether the

plaintiff was likely to succeed on the merits. The defendants are

entitled to raise this argument in this interlocutory appeal of the

injunction, which is plainly allowed under 28 U.S.C.

§ 1292(a)(1). Gulfstream did not involve an injunction. It was an

attempt to appeal the denial of a motion to stay or dismiss on

abstention grounds. The Sierra Club also cites Doran v. Salem

App. 8

whether the district court should abstain, but whether the

court properly entered a preliminary injunction. The lat-

ter question turns on whether the Sierra Club established

a substantial likelihood of success on the merits in the

face of the Burford abstention doctrine.

The Sierra Club failed to meet the first requirement

of a preliminary injunction - a substantial likelihood of

success on the merits —- because abstention appears so

manifestly warranted under Burford. In Burford, plaintiff

Sun Oil brought a federal suit challenging a Texas Rail-

road Commission order granting a drilling permit to

defendant Burford. Sun Oil claimed the permit violated

its due process rights. The Court held that the federal

district court should have abstained, noting the compre-

hensive nature of the state regulatory scheme, the large

interest of the state in regulating and conserving its oil

and gas resources, and the need for a unified approach to

granting permits by a single adjudicatory body.

Factually, Burford and our case are very similar. In

Burford, the Court emphasized the elaborate and compre-

hensive nature of the state regulatory scheme in issue. It

Inn, Inc., 422 U.S. 922, 930 (1975), which states that “the issuance

of a preliminary injunction is not subject to the restrictions of

Younger.” This case is inapposite because it was not discussing

whether the refusal of a court to abstain is immediately

appealable. The quoted passage was part of a discussion of

whether Younger v. Harris, 401 U.S. 37 (1971), applies to a

plaintiff who has not yet been subjected to state criminal

proceedings, to which the Court’s answer was no. The case did

not discuss Burford abstention, nor did it discuss appealability

of an abstention ruling.

App. 9

described the Railroad Commission order under consid-

eration as “part of the general regulatory system devised

for the conservation of oil and gas in Texas,” noted that

the Commission “carries out its functions of production

control or proration by an elaborate system of ciders,

schedules, and reports,” and that the state regulatory

scheme provided a “well organized system of regulation

and review.” 12

Similarly, the Edwards Aquifer Act can fairly be char-

acterized as a comprehensive regulatory scheme. It repre-

sents a sweeping effort by the Texas Legislature to

regulate the aquifer, with due regard for all competing

demands for the aquifer’s water. The Act vests the

Edwards Aquifer Authority with “all the powers and

privileges necessary to manage, conserve, preserve, and

protect the aquifer... .” The Authority controls with-

drawals from the aquifer through a permit system. Sec-

tion 1.25 of the Act charges the Edwards Aquifer

Authority with developing “a comprehensive water man-

agement plan that includes conservation, future supply,

and demand management plans.” The Act also speci-

fically addresses the preservation of endangered species.

Under § 1.14 of the Act the Authority must “protect

aquatic and wildlife habitat” and “protect species that are

designated as threatened or endangered under applicable

federal or state law.” The Authority is empowered to file

civil suits in state district court for an injunction. In

addition, a separate entity, the Texas Natural Resource

Conservation Commission, is authorized under § 1.39 of

12 319 U.S. at 318, 320 n. 12, 327.

App. 10

the Act to file suit for an order of mandamus against the

Authority to compel the Authority to perform its duties.

Burford emphasized that the state regulatory scheme

in issue concerned the “very large” interest of the state in

conserving oil and gas, and that the Railroad Commis-

sion’s regulation of oil and gas production was “of vital

interest to the general public . . . with implications to the

whole economy of the state.”!5 The regulation of water

resources is likewise a matter of great state concern. As

the Texas Supreme Court stated in Barshop, “[c]onserva-

tion of water has always been a paramount concern in

Texas, especially in times, like today, of devastating

drought.”!4 It characterized the Edwards Aquifer as “the

primary source of water for residents of the south central

part of this state. It is vital to the general economy and

welfare of the State of Texas.”!5 The court recognized that

“the State has the responsibility under the Texas Consti-

tution to preserve and conserve water resources for the

benefit of all Texans.”'© The Texas Legislature, speaking

through § 1.01 of the Edwards Aquifer Act, found that the

aquifer “is a unique and complex hydrological system,

with diverse economic and social interests dependent on

the aquifer for water supply.”

The defendants correctly note that both the aquifer

and the endangered species are entirely intrastate, which

13 Id. at 320, 324-25.

14 925 S.W.2d at 626.

15 Id. at 623.

16 Id.

App. 11

makes management of the aquifer a matter of peculiar

importance to the state.!”

The record in this case also illustrates the vital impor-

tance of the aquifer to the citizens of central Texas. For

example, the president of the San Antonio Water System

testified that the injunction’s limitation of water use to 1.2

times average winter use would likely require the city to

maintain lower water pressure than state law requires for

fighting fires. A consulting engineer for the City of Leon

Valley testified that the restrictions would necessitate the

complete curtailment of outside watering, resulting in

damage to 50% of the foundations in the city with dam-

ages to each home ranging from $2000 to $20,000. Other

defendants offered similar evidence through affidavits.

As in Burford, there is a need for unified management

and decision-making regarding the aquifer, since allow-

ing one party to take water necessarily affects other par-

ties. The Court in Burford noted that for many reasons

“each oil and gas field must be regulated as a unit,” that

well spacing and proration “are a part of a single inte-

grated system and must be considered together,” and that

“(t]he state provides a unified method for the formation

of policy and determination of cases by the Commission

17 The defendants separately argue that applying the

Endangered Species Act to these circumstances is beyond the

power of Congress to regulate interstate commerce and

therefore unconstitutional. The United States has urged that we

not reach this issue unless, all other appellate challenges to the

temporary injunction being first rejected, it becomes necessary

to do so in order to resolve this appeal. We do not reach any

constitutional issue.

App. 12

and by the state courts.”'* The Court stressed the need

for unitary enforcement of the regulatory scheme by not-

ing the problem of drainage: “Since the oil moves

through the entire field, one operator can not only draw

oil from under his own surface area, but can also, if he is

advantageously located, drain oil from the most distant

parts of the reservoir. The practice of attempting to drain

oil from under the surface holdings of others leads to

offset wells and other wasteful practices; and this prob-

lem is increased by the fact that the surface rights are

split up into many small tracts.”19 The Court noted that

“the physical facts are such that an additional permit may

affect pressure on a well miles away. The standards

applied by the Commission in a given case necessarily

affect the entire state conservation system.”2°

Similar concerns surely affect regulation of an aqui-

fer. As our court stated in the Babbitt appeal:

[t]he Edwards aquifer contains a finite amount

of water, and as such, the need for uniform

regulation is paramount. The Supreme Court

has recognized that such circumstances some-

times require the federal courts to abstain to

allow the state’s comprehensive regulatory

scheme to operate without the risk of competing

attempts between that regulator and the federal

courts to exercise control over the same entity.??

18 319 U.S. at 319, 323 n. 15, 333-34.

19 Id. at 319.

20 Id. at 324.

—_— 72! Opinion at 6 (citing Burford).

App. 13

The opinion goes on to state that “[a]s with the oil fields

at issue in [Burford ], in the present case, Texas clearly has

an interest in uniform decision-making regarding this

finite amount of water.”22

The Sierra Club argues that abstention is not war-

ranted because it only seeks relief under a federal law, the

Endangered Species Act. The district court noted in the

Babbitt case that “Burford abstention normally arises in a

case in which a federal court has diversity jurisdiction

over exclusively state law issues.” Our court has stated

that one factor is deciding whether Burford abstention

should apply is whether the cause of action arises under

federal or state law.

However, Burford itself states that abstention is

appropriate whether jurisdiction is premised on diversity

jurisdiction or otherwise, if the federal courts should,

consistent with our federal system, afford comity to state

governments in carrying out their domestic policy. The

Court held: “Although a federal equity court does have

jurisdiction of a particular proceeding, it may, in its

sound discretion, whether its jurisdiction is invoked on the

ground of diversity of citizenship or otherwise, ‘refuse to

enforce or protect legal rights, the exercise of which may

be prejudicial to the public interest’; for it ‘is in the public

interest that federal courts of equity should exercise their

discretionary power with proper regard for the rightful

independence of state governments in carrying out their

22 Id. at 6 n. 4.

23 Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314

(5th Cir.1993).

App. 14

domestic policy.’ “24 Burford abstention does not so much

turn on whether the plaintiff’s cause of action is alleged

under federal or state law, as it does on whether the

plaintiff’s claim may be “in any way entangled in a skein

of state law that must be untangled before the federal

case can proceed.”25 Moreover, our case is not distin-

guishable from Burford because the cause of action is

based on federal law. In Burford as well, the cause of

action alleged was that the order of the Railroad Commis-

sion had denied plaintiffs “due process of law.”?¢ If

abstention is warranted when the plaintiff is claiming a

violation of his constitutional rights, then surely it is also

warranted where the plaintiff claims a federal statutory

violation.

The district court reasoned that abstention was

unwarranted because the Edwards Aquifer Authority had

not had time to develop a plan for managing the aquifer

and dealing with the emergency situation. The record

indicates that the Authority is in the process of taking

comments and formulating rules for permits and emer-

gency measures. The State informs us in an amicus brief

that the Edwards Aquifer Authority “is now established

and has begun operations.” In a supplemental filing San

Antonio points out that on December 19, 1996, the

24 319 U.S. at 317-18 (quoting United States ex rel. Greathouse

v. Dern, 289 U.S. 352 (1933) and Pennsylvania v. Williams, 294 U.S.

176, 185 (1935)).

25 Quackenbush v. Allstate Ins. Co., 116 S.Ct. 1712, 1726 (1996)

(quoting McNeese v. Board of Ed. for Community Unit Sch. Dist.,

-373 U.S. 668, 674 (1963)).

26 319 USS. at 317.

App. 15

Authority issued final rules for filing and processing of

permit applications, and for critical period management.

We do not believe that Burford abstention is applica-

ble only where the state regulatory scheme is fully in

place. The Supreme Court has noted that “[w]Je have since

provided more generalized descriptions of the Burford

doctrine, see, e.g. . . . Colorado River (abstention where

‘exercise of federal review of the question in a case and in

similar cases would be disruptive of state efforts to estab-

lish a coherent policy with respect to a matter of substan-

tial public concern’)”.?7

The only significant factual distinction between our

case and Burford — that the Railroad Commission’s regula-

tory scheme in Burford was well established - is not a

sound basis for concluding that abstention is not war-

ranted here. The reasoning of Burford did not turn on the

fact that the regulatory scheme was old, but that it was a

comprehensive scheme governing a matter of vital state

interest, and one where uniform application of rules was

important. These same concerns apply to our case.

In its brief the Sierra Club defends the injunction by

arguing that it was entered only after the court “was

informed that the [Edwards Aquifer Authority], on the

night before the preliminary injunction hearing, had

voted against declaring an emergency... . ” In denying

the motion to dismiss on abstention grounds, the district

court noted that “the Edwards Aquifer Authority voted at

27 Quackenbush, 116 S.Ct. at 1725 (emphasis added; quoting

Colorado River Conservation Dist. v. United States, 424 U.S. 800,

814-16 (1976)).

App. 16

its July 31, 1996 hearing that an emergency did not exist

and thus no emergency measures needed to be taken. . . .

This Court, based on the documentary and testimonial

evidence heard to date, believes than an emergency does

exist.” What the court’s action indicates is that it is will-

ing to abstain as long as the state authority agrees with it.

The purpose of Burford abstention is to discourage such

federal court second-guessing of state regulatory matters.

Burford abstention is particularly appropriate where “[b]y

proceeding the district court would have risked reaching

a different answer than the [state] institutions with

greater interest in and familiarity with such matters.”28

The Sierra Club argues that the Edwards Aquifer Act

does not provide any state court judicial review for a

plaintiff such as itself. The Sierra Club may be correct,

since, unlike the Endangered Species Act,?? there is no

express private citizen cause of action created in the

Edwards Aquifer Act for entities such as environmental

groups to seek judicial redress for statutory violations.

The defendants argue that there is provision for state

court review in the state Act, since § 1.11(h) of the

Edwards Aquifer Act provides that the Authority is sub-

ject to the Texas Administrative Procedure Act.*° It is

unclear, however, whether this provision gives a private

cause of action or confers standing on an environmental

group like the Sierra Club. But as explained above, the

28 Wilson, 8 F.3d 311 at 315.

29 See 16 U.S.C. § 1540(g).

30 The Texas Administrative Procedure Act is now codified

at TEX. GOV’T CODE ANN. § 2001.001 et seq. (Vernon

Supp.1997).

App. 17

Edwards Aquifer Authority is charged with protecting

endangered species and is authorized to file civil suits in

state district court for injunctive relief, and a separate

entity, the Texas Natural Resource Conservation Commis-

sion, is authorized to file suit for an order of mandamus

against the Authority to compel it to perform its duties.

The Supreme Court has described Burford abstention

as applicable “[w]here timely and adequate state-court

review is available.”*! However, we find no authority

that Burford abstention cannot apply unless the plaintiff

himself has a private, judicial cause of action under the

state regulatory scheme, and the Supreme Court has

recently stated that there is no “formulaic test for deter-

mining when dismissal under Burford is appropriate.”*?

Judge Benavides’ “dissent” — a dissent, not from the

judgment, but from deciding the appeal — treats the Sierra

Club as the possessor of a claim of right rather than one

of standing. The true interest here is that of the public in

the preservation of the fountain darter. The rationale of

Burford abstention is served by the state’s regulation of

this enormous water resource rather than by the federal

court. At least, that appears to be true from this prelimi-

nary injunction record. We state no bar against the Sierra

Club, either in pursuing the merits or in ultimate efforts

to protect the water and darters if the State of Texas fails

to do so.

3i New Orleans Public Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 361 (1989).

32 Quackenbush, 116 S.Ct. at 1726.

App. 18

The Sierra Club argues that abstention cannot be

used to create “negative preemption,” meaning that a

state cannot set up its own regulatory scheme and then

claim that a federal regulatory scheme should be ignored.

It cites Adams Fruit Co. v. Barrett.*> In that case the plain-

tiffs, migrant farm workers, were injured and received

state worker compensation benefits. They then sued

under the federal Migrant and Seasonal Agricultural

Worker Protection Act.*4 The Court held that the state law

providing that a worker who receives worker’s compen-

sation cannot recover any other benefits did not bar the

plaintiffs from pursuing their federal remedy. It stated

that “we refuse to adopt [defendant's] ‘reverse’ pre-emp-

tion principle that would authorize States to withdraw

federal remedies by establishing state remedies as exclu-

sive.”35 This case is not on point since it does not discuss

abstention. The Sierra Club may be confusing preemption

with abstention.

Regardless, we agree with the Sierra Club that, as a

general proposition, a State should not be able to create a

regulatory scheme and then claim that federal regulation

of the same subject matter does not apply. In effect it

argues the state Act has “preempted” federal review of its

federal claim if the federal court abstains. The response to

this argument, however, is that the same thing happens

whenever a federal court abstains and the plaintiff has

asserted a federal claim. This is almost always the case

33 494 U.S. 638 (1990).

34 29 U.S.C. § 1801 et seq.

35 494 U.S. at 648.

App. 19

with Younger abstention,*© where the plaintiff brings suit

in federal court, seeking to enjoin a state proceeding on

grounds that his federal constitutional rights are being

violated.

Another weakness in the Sierra Club’s “negative pre-

emption” argument is that the Endangered Species Act

cannot fairly be described as an attempt to preempt all

state law related to conservation and the protection of

endangered species. The Act itself states: “It is further

declared to be the policy of Congress that Federal Agen-

cies shall cooperate with State and Local Agencies to

resolve water issues in concert with conservation of

endangered species.”9”? The language of the federal Act

does not suggest that abstention is to be avoided in cases

brought under it.

The Sierra Club also argues that abstention should

not apply because there is no state administrative pro-

ceeding underway with which the federal proceeding is

in conflict. We find this argument factually and legally

unavailing. Factually, the record indicates that the

Edwards Aquifer Authority has proceeded with rulemak-

ing for the granting of permits and critical period man-

agement, and has already declined to declare an

emergency. The federal court’s injunction conflicts with

these actions. Legally, Burford abstention does not require

the existence of an ongoing state proceeding with which

the federal court action directly interferes. This require-

ment is found with Younger abstention, which applies

36 See Younger v. Harris, 401 U.S. 37 (1971).

37 16 U.S.C. § 1531(c)(2).

App. 20

“when federal court jurisdiction would interfere with

pending criminal, civil, or administrative state proceed-

ings,” and requires that “the pending state proceeding

must be ongoing and judicial in nature.”%*

For these reasons, we conclude that the district court

erred in granting the preliminary injunction. The order

granting the injunction is VACATED.

BENAVIDES, Circuit Judge, dissenting:

The Burford abstention doctrine applies only “[w]here

timely and adequate state-court review is available.” New

Orleans Pub. Serv., Inc. v. Council of the City of New Orleans,

491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989)

(NOPSI). Because the administrative scheme enacted by

the State of Texas does not afford adequate judicial

review of the Sierra Club’s federal claim, Burford is inap-

plicable. Therefore, I cannot agree with the majority’s

conclusion that “[t]he Sierra Club failed to meet the first

requirement of a preliminary injunction - a substantial

likelihood of success on the merits — because abstention

appears so manifestly warranted under Burford.”

When Congress enacted the Endangered Species Act,

it explicitly provided that “any person may commence a

civil suit on his own behalf to enjoin any person... who

is alleged to be in violation of this chapter or regulation

issued under the authority thereof. ...” 16 U.S.C.

38 Baran v. Port of Beaumont Navigation Dist., 57 F.3d 436, 441

(Sth Cir.1995).

ci bie Ranh Sel RM

fi AA hie Et ey AACE AN AI Hag Hit 0 ae NE 8 EB

App. 21

§ 1540(g)(1)(A). The appellants acknowledge that the dis-

trict court had federal subject matter jurisdiction in this

case pursuant to 28 U.S.C. § 1331 and the Endangered

Species Act, 16 U.S.C. § 1540(c).! The Supreme Court has

long recognized that federal courts have a “virtually

unflagging” obligation to exercise the jurisdiction con-

ferred upon them by Congress. See, e.g., NOPSI, 491 U.S.

at 359. Although this duty is not absolute, abstention is

“the exception, not the rule.” Colorado River Water Conser-

vation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct.

1236, 47 L.Ed.2d 483 (1984). Specifically, the Supreme

Court has recently emphasized that Burford abstention

applies only in a “narrow range of circumstances.” Quack-

enbush v. Allstate Insurance Co., __ U.S. __, 116 S.Ct.

1712, 1725, 135 L.Ed.2d 1 (1996).

The Supremacy Clause provides that federal law

“shall be the supreme Law of the Land... , any Thing in

the Constitution or the laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, § 2. The Supremacy

Clause makes federal law binding on the “Judges in every

State.” Id. Pursuant to this constitutional provision, state

courts are obligated to exercise judicial review of federal

claims properly within their jurisdiction.

Abstention involves a federal court’s refusal to exer-

cise jurisdiction it clearly possesses in favor of a state

! The Endangered Species Act provides that “[t]he several

district courts of the United States ... shall have jurisdiction

over any actions arising under this chapter.” 16 U.S.C. § 1540(c).

App. 22

court’s exercise of jurisdiction. Thus, when a federal court

abstains in a case in which a federal question is pre-

sented, state courts are obligated to exercise judicial

review of that claim. If, for some reason, the state court

does not have jurisdiction to review the federal claim,

abstention is inappropriate. For example, this court has

recognized that Burford abstention is inapplicable when a

federal court has exclusive jurisdiction over the plaintiff’s

federal claim. See Evans v. Dale, 896 F.2d 975, 978-79 (5th

Cir.1990).

The Supreme Court has required Burford abstention

in only two cases. The first, Burford v. Sun Oil Co., 319

U.S. 315, 316-17, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943),

involved a challenge to the validity of an order of the

Texas Railroad Commission. The plaintiffs asserted state

law claims and argued that the Commission’s order vio-

lated their right to due process of law under the Constitu-

tion.? Id. at 317, 63 S.Ct. at 1098-99. The Court ultimately

2 The Burford Court repeatedly emphasized that state law

issues were predominant and that the federal constitutional

claim bordered on the frivolous. See, e.g., id. at 325 (“While the

constitutional power of the Commission to enforce [the

challenged rule] or to make exceptions to it is seldom seriously

challenged, the validity of particular orders from the standpoint

of statutory interpretation may present a serious problem, and a

substantial number of such cases have been disposed of by the

Texas courts which alone have the power to give definite

answers to the questions of State law posed in those

proceedings” (citations omitted)); id. at 328 (“The federal court

has been called upon constantly to determine whether the

Railroad Commission has acted within the scope of statutory

authority, while the important constitutional issues have, as the

federal court has repeatedly said, been fairly well settled from

the beginning”). It is undisputed, of course, that the Sierra Club

App. 23

concluded that the federal court should stay its hand

because federal court litigation “threatened the purpose

of the complex administrative system that Texas had

established.” Quackenbush, 116 S.Ct. at 1725 (citing Bur-

ford, 319 U.S. at 332).

Prior to reaching this conclusion, however, the Court

noted that “judicial review of the Commission’s decisions

in the state courts [was] expeditious and adequate.” Bur-

ford, 319 U.S. at 334. Essential to this conclusion, more-

over, was the fact that the state courts were available to

hear the plaintiffs’ federal due process claim. In this

regard, the Court specifically noted that “if the state

procedure is followed from the Commission to the State

Supreme Court, ultimate review of the federal questions

is fully preserved here.” Id.

Similarly, in Alabama Public Service Commission v.

Southern Railway Co., 341 U.S. 341, 343, 71 S.Ct. 762, 95

L.Ed. 1002 (1951), the plaintiff challenged an order of the

Alabama Public Service Commission under state law and

argued that the order “amounted to a confiscation of its

property in violation of the Due Process Clause of the

has asserted no state law claims against the appellants. This fact

alone distinguishes the instant case from Burford and suggests

that abstention is not appropriate. Cf. NOPSI, 491 U.S. at 361

(reversing this court’s application of Burford abstention and

noting that the case did not involve a state-law claim); Wilson v.

Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir.1993)

(holding that “whether the cause of action arises under federal

or state law” is a relevant factor in assessing the applicability of

Burford abstention).

App. 24

Fourteenth Amendment.”? The Court held that because

“adequate review of an administrative order based upon

predominantly local factors [was] available to appellee,

intervention of a federal court [was] not necessary for the

protection of federal rights.” Id. at 349. In emphasizing

the adequacy of state-court review of the plaintiff's fed-

eral constitutional claim, the Court noted that the plain-

tiff “ha[d] not shown that the Alabama procedure for

review of Commission orders [was] in any way inade-

quate to preserve for ultimate review in this Court any

federal questions arising out of such orders.” Id.

The majority does not explain its justification for

finding that “adequate state-court review is available.”

NOPSI, 491 U.S. at 361. One can only presume that it

reaches this conclusion because “the Edwards Aquifer

Authority is charged with protecting endangered species

and is authorized to file civil suits in state district court

for injunctive relief, and a separate entity, the Texas Natu-

ral Resource Conservation Commission, is authorized to

file suit for an order of mandamus against the Authority

to compel it to perform its duties.” Nonetheless, the

majority concedes that “[i]t is unclear . . . whether [the

Edwards Aquifer Act] gives a private cause of action or

3 The Court noted that its concern was “limited to the

propriety of a federal court injunction enjoining enforcement of

a state regulatory order.” Id. at 346. The instant case is

distinguishable from both Burford and Alabama Public Service

Commission because it does not involve an action for injunctive

relief against a state regulatory commission. For this reason,

moreover, the Court’s concern about federal court interference

with state regulatory orders is not implicated by the Sierra

Club’s lawsuit against the appellants.

App. 25

confers standing on an environmental group like the

Sierra Club.”

Similarly, the appellants argue that state remedies

“afford timely and adequate review of the Authority’s

protection of endangered species.” This contention is

debatable because the Act only authorizes, but does not

require, the Authority and the Texas Natural Resource

Conservation Commission to protect endangered species.

In any event, the appellants’ argument misses the point.

While it was important that the state administrative

schemes in Burford anc, Alabama Public Service Commission

provided adequate judicial review of the orders of the

state commissions, that was only because the plaintiffs

were challenging orders of the commissions, who were

defendants in those cases. Adequate review of the com-

missions’ orders in those cases was a necessary, albeit

insufficient, justification for applying Burford abstention.

Indeed, the Court relied on the fact that there was “ade-

quate state-court review” of the plaintiffs’ federal claims.

Thus, even assuming that Texas’s administrative

scheme provides adequate judicial review of the activity

of the Authority, this does not justify this court’s exercise

of Burford abstention. First, the adequacy of judicial

review of the Authority’s action is irrelevant in this case

because the Sierra Club is not challenging an order of the

Authority. See note 3 and accompanying text. Second,

adequate review of the Authority’s decisions does not

change the fact that there is no judicial review of the

Sierra Club’s federal claim.

Adequate state-court review of a plaintiff’s federal

claim is a necessary prerequisite to Burford abstention for

App. 26

two reasons. First, as noted, the Supremacy Clause

requires state courts to enforce federal laws. It would

defeat the purposes underlying that protection for federal

courts to abstain in cases raising federal claims where the

state courts do not provide adequate judicial review of

those claims. Second, adequate state-court review of a

plaintiff’s federal claims is necessary to ensure that the

Supreme Court is able to maintain jurisdiction over those

claims should the state courts fail to provide sufficient

protection for federal rights.

Il.

Neither the majority nor the appellants seriously dis-

pute the Sierra Club’s contention that it cannot bring an

Endangered Species Act claim within the auspices of the

Edwards Aquifer Act.* Instead, the appellants claim that

the “Sierra Club is free to bring its ESA claims in the State

courts of Texas. ...” Assuming this is true, however, the

appellants’-argument ignores the rationale justifying Bur-

ford abstention in the first place.

The Supreme Court has explained that “Burford is

concerned with protecting complex state administrative

processes from undue federal interference.” NOPSI, 491

U.S. at 362. Therefore, in an appropriate case, a federal

court must defer to the state court’s administrative

scheme. In the absence of adequate review of a plaintiff's

* The majority concedes that “[t]he Sierra Club may be

correct, since, unlike the Endangered Species Act, there is no

express private citizen cause of action created in the Edwards

Aquifer Act for entities such as environmental groups to seek

judicial redress for statutory violations.” (citation omitted).

App. 27

federal claim within that scheme, however, deference to

state courts does not further the policies justifying Bur-

ford abstention.°

To find authority for the proposition that “adequate

state-court review” must occur within the state adminis-

trative scheme, one need look no further than Burford

itself. There, the Court explained the need for abstaining

in favor of a uniform and comprehensive scheme of state-

court review:

To prevent the confusion of multiple review

of the same general issues, the legislature pro-

vided for concentration of all direct review of

the Commission’s orders in the State district

courts of Travis County. The Texas courts have

authoritatively declared the purpose of this

restriction: If an order of the commission, lawful

on its face, can be collaterally attacked in the

various courts and counties of the state on

grounds such as those urged in the instant case,

interminable confusion would result.

Concentration of judicial supervision of Rail-

road Commission orders permits the state

courts, like the Railroad Commission itself, to

acquire a specialized knowledge which is useful

in shaping the policy of regulation of the ever-

changing demands in this field. . . . The very

‘confusion’ which the Texas legislature and the

5 See McNeese v. Board of Educ. Community Unit Sch. Dist.

187, 373 US. 668, 674-75, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963)

(declining to apply Burford abstention in a school desegregation

case brought pursuant to section 1983 because it was not clear

that state law provided the plaintiffs “with an administrative

remedy sufficiently adequate to preclude prior resort to a

federal court for protection of their federal rights”).

App. 28

[State] Supreme Court feared might result from

review by many state courts of the Railroad

Commission’s orders has resulted from the exer-

cise of federal equity jurisdiction.

319 U.S. at 327 (internal quotations and citations omit-

ted). See also Alabama Pub. Serv. Comm'n, 341 U.S. at 348

(“Statutory appeal from an order of the Commission is an

integral part of the regulatory process under the Alabama

Code. Appeals, concentrated in one circuit court, are

supervisory in character.”); NOPSI, 491 U.S. at 374 (Rehn-

quist, C.J., concurring) (agreeing with the Court that

abstention was inappropriate, but noting that he “would

not foreclose the possibility of Burford abstention in a

case .. . [where] the State consolidated review of the

orders of local ratemaking bodies in a specialized state

court with power to hear a federal preemption claim”).

The Sierra Club’s Endangered Species Act claim can-

not be raised within the scheme that Texas has estab-

lished to regulate Edwards Aquifer water. In this

important sense, then, the state’s administrative scheme

is not uniform and comprehensive in the same manner

the Supreme Court has considered dispositive. In fact,

“the very confusion” the Burford doctrine seeks to avoid

would result “from review by many state courts” of

claims brought under the Endangered Species Act. Bur-

ford, 319 U.S. at 327.

IV.

The appellants’ abstention argument amounts to

nothing more than a plea for this court to abrogate its

duty to enforce a federal right granted to private citizens

App. 29

by Congress because doing so would potentially conflict

with important local interests.© The Supreme Court has

recognized, however, that Burford “does not require

abstention whenever there exists [a state administrative

process], or even in all cases where there is a ‘potential

for conflict’ with state regulatory law or policy.” NOPSI,

491 U.S. at 362 (quoting Colorado River Water Conservation

Dist., 424 U.S. at 815-16). More important, the appellants’

contention is flatly inconsistent with a governmental sys-

tem in which federal law is supreme.

Because the Edwards Aquifer Act does not provide

adequate judicial review of the Sierra Club’s federal

claim, I would find the Burford abstention doctrine inap-

plicable and would reach the arguments raised by the

6 Indeed, Congress recognized that enforcement of the

Endangered Species Act might conflict with important local

interests. See 16 U.S.C. § 1535. Therefore, Congress declared that

“{iJn carrying out the program authorized by [the ESA], the

Secretary [of the Interior] shall cooperate to the maximum

extent practicable with the States.” Id. § 1535(a). In this regard,

Congress authorized the Secretary “to enter into a cooperative

agreement ... with any State which establishes and maintains

an adequate and active program for the conservation of

endangered species and threatened species.” Id. § 1535(c).

Thus, the Endangered Species Act establishes an avenue

whereby states can minimize federal interference. Nonetheless,

the appellants do not claim to have followed the procedures

outlined in the Act for entering into a cooperative agreement

with the federal government. See id. § 1535(c)(1). Nor do the

appellants claim to have established an “adequate and active

program for the conservation of endangered species” under the

Act. See id. These circumstances render the majority’s deference

to the state’s administrative scheme particularly unwarranted.

App. 30

appellants with respect to the extraordinary and exten-

sive order appealed from herein. For the foregoing rea-

sons, I respectfully dissent.

App. 31

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-50636

(Filed Jun. 20, 1997)

SIERRA CLUB

Plaintiff - Appellee

CITY OF SAN ANTONIO, ET AL,

Defendants

NEW BRAUNFELS UTILITIES,

Defendant - Appellee

CITY OF SAN ANTONIO; SAN ANTONIO WATER

SYSTEMS CITY OF HONDO, TEXAS, On Its Behalf and

All Other Municipal, Industrial, Commercial, Domestic

and Livestock Pumpers in Medina; CITY OF UVALDE,

TEXAS, On Its Behalf and All Other Municipal,

Industrial, Commercial, Domestic and Livestock Pumpers

in Uvalde and Kinney Counties; CITY OF LEON VALLEY,

TEXAS, On Its Behalf and All Other Municipal, Domestic

and Livestock Pumpers in Bexar and Atascosa Counties;

REDLAND STONE PRODUCTS COMPANY, On Its

Behalf and All Other Industrial and Commercial

Pumpers; SOUTHWEST RESEARCH INSTITUTE, On Its

behalf and All Other Industrial and Commercial Pumpers

in Bexar and Atascosa Counties; UNITED SERVICES

AUTOMOBILE ASSOCIATION, On Its Behalf and All

Other Industrial and Commercial Pumpers in Bexar and

App. 32

Atascosa Counties; BEXAR METROPOLITAN WATER

DISTRICT,

Defendants — Appellants

Appeal from the United States District Court for the

Western District of Texas, Midland

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 4/30/97, 5 Cir. __, ___ F.3d)

PER CURIAM:

(X) Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor judge

in regular active service of the court having requested

that the court be polled on Rehearing En Banc (FRAP and

Local Rule 35), the Suggestion for Rehearing En Banc is

DENIED.

( ) Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. The court having been polled at

the request of one of the members of the court and a

majority of the judges who are in regular active service

not having voted in favor (FRAP and Local Rule 35), the

Suggestion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Thomas M. Reavley

United States Circuit Judge

App. 33

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

SIERRA CLUB MO-96-CA-97

Vv.

SAN ANTONIO, er At.

(Filed

Aug. 14, 1996)

ll ee

ORDER

BEFORE THE COURT, in the above-captioned cause

of action, is San Antonio, San Antonio Water System

(“SAWS”), and Southwest Research Institute’s (“SwRI”)

Motion to Dismiss Plaintiff’s Complaint on Burford

Abstention Grounds. Also before the Court is SAWS’

Motion to Dismiss based on Commerce Clause grounds.

The Court has ruled on SwRI’s Motion to Dismiss on

Commerce Clause grounds and filed an opinion with that

Order. The Court hereby adopts the reasoning applied in

denying SwRI’s Motion to Dismiss and accordingly

denies SAWS’ Motion to Dismiss on Commerce Clause

grounds.

Burford Abstention

Abstention doctrines are judge-made legal doctrines

pursuant to which a federal district court with jurisdic-

tion exercises its equitable discretion and declines to

exercise that jurisdiction, in deference to ongoing state

proceedings. Abstention doctrines cover “exceptional cir-

cumstances” justifying limits on the rule that a federal

App. 34

court has a “virtually unflagging obligation” to exercise

its jurisdiction, once properly invoked. Quackenbush v.

Allstate Insurance Co., 116 S.Ct. 1712, 1725-726 (1996);

Colorado River Water Conservation District v. United States,

424 U.S. 800, 817-818 (1976). As discussed below, the

Burford abstention doctrine does not apply here.

Burford abstention is appropriate when the following

test is met:

where timely and adequate state-court review is

available, a federal court sitting in equity must

decline to interfere with the proceedings or

orders of state administrative agencies: (1) when

there are ‘difficult questions of state law bearing

on policy questions of substantial public import

whose importance transcends the result in the

case then at bar’; or (2) where the exercise of

federal review of the question in a case and in

similar cases would be disruptive of state efforts

to establish a coherent policy with respect to a

matter of substantial public concern.

New Orleans Public Service, Inc. v. Council of New Orleans,

491 U.S. 350, 361 (1989).

Burford abstention normally arises in diversity cases

involving state law issues. 17A WricHt, MILLeR & Cooper,

FepeRAL Practice & Procepure § 4244 at 86-88, § 4245 at

103. First, this is not a diversity case involving state law

issues. Second, the mere fact that the state of Texas has

created the Edwards Aquifer Authority and there is a

potential for conflict with respect to the protection of the

endangered species at Comal and San Marcos Springs

does not mandate abstention. See Beran v. Port of Beaumont

Nav. Dist. of Jefferson County, Texas, 57 F.3d 436 (5th Cir.

App. 35

1995). This is a Section 9 (Takings) citizen action brought

pursuant to the Endangered Species Act. See 16 U.S.C.

§ 1538. The case does not involve a state administrative

proceeding. This is an action in which the conduct of the

named Defendants is allegedly causing immediate injury

to endangered species. Burford principles are not impli-

cated when the federal cause of action does not involve a

state administrative proceeding. St. Paul Ins. Co. v. Trejo,

39 F.3d 585, 589 (Sth Cir. 1994).

Assuming arguendo, that the state courts have con-

current jurisdiction to hear ESA cases,! state courts do not

have the authority to force the United States or its agen-

cies to take any action. See e.g., Knox Nat’l Farm Loan Ass'n

v. Phillips, 300 U.S. 194 (1937); Morgan v. Woodruff, 208

S.W.2d 628 (Tex.Civ.App. - Galveston 1948, no writ). The

Department of Defense, Army and Air Force are Defen-

dants in this lawsuit. A state district court has no author-

ity to order these departments to comply with its orders.

Thus, adequate state court review is unavailable in this

case and Burford abstention is inappropriate. See New

Orleans Public Service, Inc. v. Council of New Orleans, 491

U.S. at 361.

Finally, the Edwards Aquifer Authority voted at its

July 31, 1996 hearing that an emergency did not exist and

thus no emergency measures needed to be taken. Because

the Edwards Aquifer Authority has the authority to man-

date emergency measures when an emergency exits or

when federal law is being violated, this Court concludes

1 The Court, nor any of the parties, have been able to cite

any reported Texas where the state court heard a cause of action

filed under the ESA.

App. 36

that the Edwards Aquifer Authority is of the opinion that

the ESA is not being violated. And even if Edwards

Aquifer Authority action could be conceived as a state

administrative proceeding, such proceeding terminated

with the vote that no emergency exists. This Court, based

on the documentary and testimonial evidence heard to

date, believes that an emergency does exist; that takes of

endangered species are occurring; and that some mea-

sures must be taken to ensure that the endangered spe-

cies at Comal and San Marcos Springs are protected. It is

this Court’s unflagging duty under the law to insure that

the endangered species are protected. Until or unless

another agency takes adequate measures to protect the

endangered species and their habitat, this Court will not

abstain. Accordingly,

IT IS ORDERED that San Antonio, SAWS, and

SwRI’s Motions to Dismiss on Burford Abstention

Grounds are hereby DENIED.

SIGNED this 12th day of August, 1996.

/s/ Lucius D.-Bunton

HONORABLE LUCIUS D. BUNTON III

SENIOR U.S. DISTRICT JUDGE

App. 37

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

MO-96-CA-

SIERRA CLUB tinudagge had

SAN ANTONIO, er At.

i i ed

ORDER

(Filed Aug. 16, 1996)

Came on to be considered before the Court in a

hearing held in Austin, Texas on August 1, 1996, Plain-

tiff’s Motion for Temporary Restraining Order and Pre-

liminary Injunction. Upon due consideration of the

evidence presented, pleadings filed, and argument made,

the Court, at this time, grants Plaintiff's Motion in part as

follows:

Conditions within the San Antonio portion of the

Edwards Aquifer constitute an emergency requiring

prompt action to limit pumping to protect endangered

species and the Edwards Aquifer. Such pumping limits

must be crafted carefully to avoid endangering public

health and safety and to minimize disruption of economic

activity.

The development of appropriate limits requires con-

sideration of very complex issues (for example, measures

available to limit use by commercial and industrial

App. 38

pumpers without unduly disturbing their essential busi-

ness activities) and large amounts of data regarding var-

ious water users. In order to develop limits that

incorporate appropriate consideration of those issues, the

Court finds it necessary to appoint an expert — Special

Master — pursuant to Federal Rule of Evidence 706. Mr.

Todd Votteler is appointed as the Master and he shall

have court approved assistance in those duties. Through

Mr. Votteler’s previous services as assistant to the Moni-

tor in Sierra Club v. Babbitt, he has acquired unique exper-

tise on these issues. Mr. Votteler shall be compensated at

the rate of $100 per hour and shall recover reasonable

expenses incurred in the pursuit of his duties, including

costs for administrative and technical assistance. Those

costs shall be assessed in a later Order.

Mr. Votteler is directed to provide to the Court, not

later than 5:00 p.m. on August 11, 1996, recommendations

on pumping limits consistent with this Order. Upon

review, and modifications if appropriate, by the Court,

those recommendations shall be circulated to the parties

for review and comment in accordance with the Court

subsequent instructions.

Any party that seeks to show cause why Mr. Votteler

should not continue to serve as the Court-appointed Mas-

ter in this matter shall submit its objections to the Court

in writing no later than August 22, 1996, and shall sub-

mit, concurrently therewith, alternate nominations.

Accordingly,

IT IS SO ORDERED.

isin sh iN nleapivantls wtesabcnits.site,

App. 39

SIGNED this 16th day of August, 1996.

/s/ Lucius D. Bunton

HONORABLE LUCIUS D. BUNTON III

SENIOR U.S. DISTRICT JUDGE

App. 40

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

SIERRA CLUB

SAN ANTONIO, er AL.

MO-96-CA-97

(Filed

Aug. 23, 1996)

ORDER

BEFORE THE COURT in the above captioned cause

of action is Plaintiff Sierra Club’s Motion for Preliminary

Injunction. After considering the arguments of the par-

ties, the evidence supplied by the parties, the testimony

received at the two hearings on temporary and prelimi-

nary injunctions, and reviewing all of the parties’ com-

ments on the Proposed 1996 Emergency Withdrawal

Reduction Plan, the Court believes that Plaintiff's Motion

should be granted.

An Emergency Exists

The Edwards Aquifer region has finally reached the

point where the Aquifer is unable to provide for the

needs of all those who depend upon it during dry years,

from persons directly over the Aquifer, to those persons

and endangered species at Comal and San Marcos

Springs. Without a fundamental change in the value the

region places on fresh water, a major effort to conserve

and reuse Aquifer water, and implemented plans to

App. 41

import supplemental supplies of water, the region’s qual-

ity of life and economic future is imperiled. The Court is

soundly convinced that an emergency presently exists

and takes of endangered species are occurring.

It is not the intention of this Court to frustrate or

impede the present attempts by the Edwards Aquifer

Authority (“EAA”) to develop, implement and enforce a

critical management plan that will protect the endan-

gered species and their habitat. The Court is mindful that

the EAA has had only a limited amount of time in which

to digest and prepare a plan to protect the Edwards

dependant species since it was given the nod by the Texas

Supreme Court. But, this Court cannot ignore a federal

statute designed to protect the endangered species at San

Marcos and Comal Springs merely because the EAA has a

great learning curve to overcome before it is ready to

manage the Aquifer. It is the Court’s genuine hope that

the EAA will be able to develop, implement and enforce a

critical management plan which will meet the goals of the

Endangered Species Act as well as protect the other users

1 Tex. S.B. 1477 § 1.01, 73rd Leg. (1995 as amended) (“a

special regional management district is required for the

effective control of the resource to protect terrestrial and aquatic

life.”); Tex. S.B. 1477 § 1.14, 73rd Leg. (1995 as amended) (“rights

to make a withdrawal under this Act shall be limited in

accordance with this section to . . . protect species that are

designated as threatened or endangered under applicable

federal or state law”) (“shall implement and enforce water

management practices, procedures, and methods to ensure that,

not later than December 31, 2012, the continuous minimum

springflows of the Comal Springs and the San Marcos Springs

are maintained to protect endangered and threatened species to

the extent required by federal law.”).

App. 42

of the Edwards. Until that time, it is the duty of this

Court to follow Congress’ directive that the endangered

species and their critical habitat be protected.

THEREFORE the Court finds that:

According to data available from the U.S. Geological

Survey, total discharge (withdrawals plus spring-

flows) from the Edwards Aquifer has exceeded total

recharge in 1993, 1994, 1995, and unless substantial

rainfall occurs over the recharge. zone this fall, is

likely to include 1996;

Springflow at Comal Springs in New Braunfels, Texas

has been below the jeopardy level for endangered

species established by the U.S. Fish and Wildlife Ser-

vice since May 23, 1996;

Springflow at San Marcos Springs in San Marcos,

Texas has been below the jeopardy level for endan-

gered species established by the U.S. Fish and Wild-

life Service since May 22, 1996;

Tourism and scientific research at Comal and San

Marcos Springs are critical to the economies of New

Braunfels and San Marcos and substantially contrib-

ute to interstate commerce;

If the drought continues the potential exists for move-

ment of the “bad-water line” which could allow the

intrusion of bad-quality water into the fresh water

zone, contaminating the fresh water in the Edwards

Aquifer, the sole water supply for San Antonio and

most water users in the region;

Some local governments and underground water dis-

tricts have either ignored the current emergency or

vacillated in their attempts to adopt and enforce

essential reductions in Edwards Aquifer water use;

ee eo ae ee

iallitaeee

Es eh ee Ta Ph dite ill he edie

App. 43

7. The Edwards Aquifer Authority has failed to recog-

nize the current emergency in votes on July 31, 1996,

and August 17, 1996, and has also failed thus far to

activate an effective critical period (drought) manage-

ment plan containing significant measures to con-

serve Edwards Aquifer water as required by Senate

Bill 1477; and

8. Present springflow levels at Comal and San Marcos

Springs are below the established jeopardy levels;

and the U.S. Fish and Wildlife Service which is

responsible for enforcing the Endangered Species Act

has failed to initiate any legal action to protect endan-

gered species at the Springs other than removal of

specimens to refuges.?

The Court hereby incorporates by reference, the 1996

Emergency Withdrawal Reduction Plan (“Plan”). This is the

Plan that the Court would adopt if it were to adopt a

comprehensive reduction plan. The parties may consider

the reduction measures contained therein as they devise

measures to meet the prescribed limitations. Rather than

impose this plan on the parties, the Court will limit the

monthly Edwards Aquifer pumpage by permitting the

parties to determine how they will reach that reduction

level. The Court is convinced that the suggestions made

in the Plan would be useful to the parties in reaching

their target pumping goals. However, as long as the maxi-

mum allowable peak-to-base pumping ratio is met, the

Court is not concerned as to the manner in which such

ration is accomplished.

2 It would appear from the failure to act by federal, state,

and local agencies, that the question posed in Genesis 4:9 has

been “No” when it should be “Yes.”

App. 44

Because of the emergency that presently exists with

respect to the endangered species and their habitat, the

Court now adopts the following municipal reductions

developed in June 1995, by representatives of the

Edwards Underground Water District, the City of San

Antonio, the Green Valley Special Utility District and

Atascosa Rural Water Supply Corporation, the City of

New Braunfels and New Braunfels Utilities, and Danny

McFadin, et al. These staged reductions and pumping

requirements are found in the compromise emergency

withdrawal reduction plan otherwise known as the Law-

yers Panel Plan. The Court finds that these reduction

levels are adequate during the current emergency.

Water Spring- Reduction Peak Maximum

Level flow Stage Reduction Allowable

Well J-17 Percentage Peak-to-

Target base

Pumping

Ratio

>655 ft msl >260 cfs none none full

655 and

less 260 cfs I 10% 1.8 x base

648 and

less 200 cfs II 20% 1.6 x base

642 and

less 175 cfs Ill 40% 1.2 x base

Reduction stage level shall be governed by the Comal

Springs flows, and not J-17 Well Levels.

App. 45

Exemptions

New Braunfels Utilities

New Braunfels Utilities has converted almost entirely

to surface water. NBU’s winter average water use from

the Edwards Aquifer is essentially zero. The Court

believes that the NBU should not be subject to the addi-

tional water use restrictions, but is of the opinion they

should adopt and enforce conservation measures as rec-

ommended for other water purveyors in the Guadalupe

River Basin. Therefore, New Braunfels should restrict its

pumping from the Aquifer at or below its July 1996 total.

Water Use Less than 120 gpcd

Where a water purveyor distributing only Edwards

Aquifer water to its customers can demonstrate to the

Court through the Special Master that an identifiable,

discreet portion of its service area, based on reports to the

Texas Water Development Board, has a gallon per capita

per day water usage from the Edwards Aquifer of less

than a 120 gpcd, that discreet portion shall be exempt

from reductions in discretionary water use in this Plan,

except for car washing and Stage III reductions for water-

ing of golf courses, lawns, parks, parkways, and other

landscaped areas.

Industrial, Commercial, and Military Pumpers

Defendant industrial, commercial, and military

pumpers should freeze their withdrawals at or below

their July 1996 totals. Industrial, commercial, and military

App. 46

pumpers shall provide the Court with monthly reports of

their total withdrawals from the Edwards Aquifer.

In the event that defendant industrial, commercial, or

military water use increases, or that municipal pumpers are

unable to reach their maximum allowable peak-to-base pump-

ing ratio requirements of this Plan under the current reduction

stage, additional reductions in Edwards Aquifer pumping

can be made only by eliminating all discretionary uses

and imposing further restrictions on industrial, commer-

cial, and military water use.

Non-discretionary water uses from the Edwards

Aquifer essential to the mission of any military installa-

tion are not intended to be restricted by any required

reductions in this Plan. As federal defendants, the mili-

tary bases are expected to appoint a representative to

report to the Court through the Special Master monthly

on the progress of negotiations for contracting for potable

or reuse water as a substitute for the Edwards Aquifer

groundwater. The Court urges the military to pursue

these projects with all deliberate speed and to execute

contracts for substitute sources of water on or before

December 31, 1996, so as to further reduce pumping from

the Edwards Aquifer. The failure of military bases to

execute contracts for substitute sources of water on or

before December 31, 1996, will require the Court to initi-

ate additional measures on January 1, 1997 depending on

springflows at Comal Springs. Accordingly,

IT IS ORDERED that all defendant municipal

pumpers limit their monthly pumpage from the Edwards

Aquifer to the appropriate stage reflected by springflow

at Comal Springs (currently Stage III). In the event that a

on Ee ene et eee

inh het aa

App. 47

municipal pumper’s monthly average exceeds its, maxi-

mum allowable peak-to-base pumping ration, the Court

reserves any and all remedies both in law and in equity

as sanctions for violating this Preliminary Injunction.?

IT IS FURTHER ORDERED that Defendant indus-

trial, commercial, and military pumpers shall comply with

the discretionary water restrictions. In the event that

industrial, commercial, or military water use increases, or

that municipal pumpers are unable to reach their maxi-

mum allowable peak-to-base pumping ratio requirements,

the Court will consider imposing further restrictions on

industrial, commercial, and military pumpers.

IT IS FURTHER ORDERED with respect to the

municipalities, this Preliminary Injunction shall remain in

effect until the Defendants can demonstrate to the Court

that the Edwards Aquifer Authority, the state agency

created to protect the Aquifer, springflows and the

endangered species, has activated, and is enforcing, a

critical management plan designed to ensure the preser-

vation of the endangered species dependent upon spring-

flows from Comal and San Marcos Springs in their

natural habitat.4

3 For example, if a municipality exceeds its allotted

pumpage during a particular month, the Court will consider the

penalties provided for in the Endangered Species Act. See 16

U.S.C. § 1540(1). The Court will consider any other remedies

which it believes will encourage or coerce compliance with this

Preliminary Injunction.

4 Should any party question the adequateness of the EAA’s

plan, they are of course free to challenge the EAA and its plan in

separate litigation.

App. 48

IT IS FURTHER ORDERED that the military

pumpers pursue with dispatch to execute contracts for

substitute sources of water on or before December 31,

1996.

IT IS FURTHER ORDERED that the parties shall

immediately supply the Court and the Special Master

with its base monthly winter usage (i.e., average of the

months of November and December, 1995, and January

and February, 1996). The parties shall also supply

monthly reports to the Court and the Special Master as to

its monthly Edwards Aquifer pumpage not later than five

days after the calendar month ends.

IT IS FURTHER ORDERED that all Defendants are

directed to furnish to the Court through the Special Mas-

ter all information, data, and reports necessary to keep

the Court informed as to compliance with this Order. The

Special Master shall also accumulate and tabulate data

concerning springflows, recharge, and pumping by all

classes of users from the Edwards Aquifer. The Special

Master shall report periodically to the Court concerning

efforts by municipalities, water purveyors, military

installations and other local and regional water districts

and authorities to achieve reductions in Aquifer water

use adequate to preserve the endangered species. He

shall also report to the Court concerning the survival of

species in refuges maintained by the U.S. Fish and Wild-

life Service. Finally, the Special Master shall prepare for

the Court a plan to restrict agricultural irrigation with-

drawals in 1997 in the event that conditions warrant the

adoption of such a plan.

App. 49

IT IS FINALLY ORDERED that this Order shall

become effective October 1, 1996, so that the parties are

able to take whatever measures necessary to comply with

its terms.

SIGNED this 23rd day of August, 1996.

/s/ Lucius D. Bunton

HONORABLE LUCIUS D. BUNTON III

SENIOR U.S. DiSTRICT JUDGE

App. 50

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

SIERRA CLUB

SAN ANTONIO, ET AL.

MO-96-CA-97

(Filed Aug. 29, 1996)

ee ee ee ee

ORDER

BEFORE THE COURT, in the above-captioned cause

of action, is San Antonio and San Antonio Water System

Board of Trustees (collectively referred to as “Movants”)

Joint Application for Stay filed August 26, 1996. After

considering all of the evidence presently before the

Court, it is the opinion of the Court that the following

decision is appropriate.

The Application for Stay and the

Preliminary Injunction

Movants make numerous blanket statements in their

application for stay. Some of their assertions are overly

broad, others misleading, and still others are patently

false. Moreover, Movants argue that the Preliminary

Injunction was improper because the Sierra Club did not

prove the traditional four elements necessary for injunc-

tive relief. The traditional test for preliminary injunctions

is not the same test for injunctions under the Endangered

Species Act (“ESA”). Loggerhead Turtle v. County Council of

Volusia County, Florida, 896 F.Supp. 1170 (M.D. Fla. 1995).

Sle dilate ides ai DAS

App. 51

Instead, the Supreme Court instructs that when consider-

ing the entry of a preliminary injunction under the ESA:

1) the Court does not have the “traditional equi-

table discretion” to balance the parties interest,

2) any threatened harm is per se irreparable

harm, and 3) the public interest always favors

the imposition of the injunction under the Act.

Loggerhead Turtle, 896 F.Supp. at 1179 (emphasis added);

see also Tennessee Valley Auth., 437 U.S. 153, 174, 184

(1978); accord National Wildlife Fed'n v. Burlington North-

ern, 23 F.3d 1508, 1511 (9th Cir. 1994).

In paragraph 3(a) Movants allege that “No single

fountain darter has died as a consequence of water usage

and the population of fountain darters at Comal Springs

is in no immediate danger.” The Endangered Species Act

(“ESA”) does not require that a species actually die before

a party is in violation of the Act, but only require that a

species be harmed. See Babbitt v. Sweet Home Chapter of

Commun. For a Great Oregon, 115 S.Ct. 2407 (1995).

The Act specifically makes it unlawful for any person

to “take any such species within the United States or the

territorial sea of the United States.” 16 U.S.C.

§ 1538(1)(B). The ESA defines “take” to mean “harass,

harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct.” 16

U.S.C. § 1532(19). A take includes habitat modification.

See Sweet Home, 115 S.Ct. at 2418. Harm is further defined

by the Department of the Interior as any “act which

actually kills or injures wildlife. Such act may include

App. 52

significant habitat modification or degradation where it

actually kills or injures wildlife by significantly impairing

essential behavioral patterns, including breeding, feed-

ing, or sheltering.” 50 C.F.R. § 17.3 (1994).

Clark Hubbs, Ph.D., an expert witness testified that

the darters were emaciated because of the effects that the

slowly flowing streams had on their environment - i.e.,

food shortages — and not because they were at a stage in

their developmental cycle that made them thinner. Dr.

Hubbs testified that he is confident that endangered spe-

cies are dying as the result of the low springflows. In fact,

Hubbs testified that as the springs slow, the temperature

of the water increases which adversely impacts the

endangered species and their food source. Furthermore,

Hubbs testified that at his last visit to the springs, he

found two exotic species (i.e., species not normally found

in that environment). Exotics are found when habitat is

disturbed. He also testified that darters are dead or dying

at spring run number 1 of Comal Springs. The significant

habitat modification and degradation caused by over-

pumping from the Edwards Aquifer has indeed harmed

the Edwards dependent endangered species and amounts

to a take.!

1 In response to this Court’s reference to Genesis 4:9 in the

Injunction, some political pundits have suggested that this

Court look to Luke 12:7 in this litigation. However, a more

accurate reading of Luke would be to read verse 12:7 in

conjunction with the preceding verse which states: “Are not five

sparrows sold for two farthings, and not one of them is

forgotten before God?” Luke 12:6. This seems much more in line

with the Congressional intent and aims of the ESA.

App. 53

II.

In paragraph 3(b), Movants claims that “there is no

cause and effect relationship between Aquifer water

usage by any party (including San Antonio) and declin-

ing springflow.” San Antonio is the largest pumper of the

Edwards Aquifer. This Court heard persuasive evidence

that on the days that San Antonio allows landscape

sprinkling, the springflows drop dramatically the follow-

ing day. In fact, the chief executive officer of San Ant-

onio’s water system testified that 20 million gallons per

day is used to water lawns.? Although Plaintiff’s expert

was unable to testify unequivocally as to the cause and

effect of Aquifer water usage on declining springflow,

Plaintiff built a credible circumstantial case that Edwards

pumping adversely affects the springflow. Plaintiff and

Defendant’s experts agreed that there is a correlation

between San Antonio pumpage and Comal springflow,

but did not know how great the correlation was. This

Court is convinced, for the purposes of this preliminary

In fact, “any taking and every taking - even of a single

individual of the protected species is prohibited by the Act.

Hence the future threat of a even single taking is sufficient to

invoke the authority of the Act.” Loggerhead Turtle, 896 F.Supp.

at 1180 (citations omitted) (emphasis in original); see also Forest

Conserv. Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995);

Swan View Coalition, Inc. v. Turner, 824 F.Supp. 923, 938 (D. Mont.

1992).

2 San Antonio currently pumps 185 million gallons per day

from the Aquifer. By prohwiting all outside lawn watering, San

Antonio could come very near its 1.2 percent winter average. Its

1.2 time winter average (or 120%) would be 161 million gallons

per day.

App. 54

injunction, that San Antonio’s pumpage from the

Edwards Aquifer adversely affect springflows.

Il.

Movants next argue that they cannot control water

usage by its 240,000 customers representing over one

million people. On June 2, 1995, representatives of San

Antonio proposed the very same pumping reductions

that this Court has adopted. See Lawyers Panel Plan. On

February 29, 1996, SAWS proposed adoption of this same

plan to the City Council of San Antonio. If SAWS and

their representatives felt that they could comply with

those pumping restrictions at that time, there is no reason

to believe that they cannot comply with them at this time.

These parties have argued to this Court that the

current actions taken by Movants through water sur-

charges have been effective in curbing excessive Aquifer

pumping. However, they now claim nothing further can

be done. The Court is unpersuaded. Surcharges are an

effective mechanism to regulate pumping. Likewise, the

City can further limit discretionary water consumption

by implementing more aggressive limitations on land-

scape watering and other suggestions set forth in the 1996

Emergency Withdrawal Reduction Plan. Movants can also

prohibit landscape watering which would further reduce

their total pumpage. See supra note 2.

IV.

In paragraph 3(d), Movants argue that because condi-

tions at Comal and San Marcos Springs have not changed

App. 55

since the filing of Plaintiff's lawsuit, there is no emer-

gency need for pumping limitations. When this lawsuit

was initially filed, the Edwards Aquifer Authority

(“EAA”) was about to begin its statutory duty to manage

the Aquifer after being given clearance from the Texas

Supreme Court. At that time, the Court hoped that the

state’s regulatory agency would enact measures to deal

with the low springflows at that time. However, after two

separate votes the EAA did not and has not done any-

thing to protect the Edwards endangered species.3 This is

but one of the events that have made conditions at Comal

and San Marcos Springs more perilous — no one is mind-

ing the store.

3 The EAA published a Proposed Critical Management Plan

that would reduce pumping from the Edwards to 1.4 times

winter average. There are several problems with this limited

action. First, the Plan does not go into effect, at the earliest, until

60 days after its publication. In fact, after the comment period,

the EAA could revise the Plan and send it back for comment.

There is no guarantee that the EAA will have a plan that is in

place and being enforced in 60 days.

Second, the Texas Water Development Board has submitted

San Antonio pumping figures which indicate that Movants are

currently pumping at 1.36 times winter average. It occurs to the

Court that even if the EAA’s proposed plan were currently in

effect it would encourage more pumping by San Antonio (i.e.,

they could pump .04 percent more than they are currently

pumping). This does nothing to encourage conservation and

further protection of the endangered species.

Lastly, the Court is perplexed at the EAA’s arrival at the 1.4

times winter average, when all current evidence suggests that

1.2 times winter average is the sound benchmark to sustain flow

at Comal and San Marcos Springs.

App. 56

Moreover, springflow at Comal has been below the

United States Fish and Wildlife’s (“USF&W”) “take”

levels since the beginning of May, 1996. Springflow at San

Marcos Springs have been below take levels since May

24, 1996, well before this litigation commenced. Although

the region has recently received some rainfall springflow

remain below the jeopardy and take levels established by

USF&W.

Movants also argue that this Court should abstain

from issuing any injunctive relief because the EAA is

currently engaged in active work to develop a Critical

Period management Plan. Joint Appl. for Stay at { 4. If the

EAA had in effect, and was enforcing a management plan

designed to protect the Edwards endangered species, this

Court might well abstain. In fact, the Court’s Injunction

states that it will be reviewed if any Defendant:

can demonstrate to the Court that the Edwards

Aquifer Authority, the state agency created to

protect the Aquifer, springflows and the endan-

gered species, has activated, and is enforcing, a

critical management plan to ensure the preser-

vation of the endangered species dependent

upon springflows from Comal and San Marcos

Springs in their natural habitat.

Court’s Order at 8.

Abstaining at this juncture would require this Court

to ignore Congress’ federal statutory mandate as evi-

denced in the ESA. Until or unless the EAA is watching

App. 57

over the Edwards dependent endangered species, this

Court will not abstain.

VI.

In paragraph 5, Movants argue that the Order should

be stayed because compliance with the Injunction would

“cause vast economic loss for which no recovery can be

expected.” Congress views the value of endangered spe-

cies as incalculable. Tennessee Valley Auth, 437 U.S. at 174.

The Supreme Court has stated that federal courts are not

granted authority to make fine utilitarian calculations

with respect to what economic value would outweigh the

value of an endangered species. In Tennessee Valley

Authority, as in this case, defendants argued that protec-

tion of the endangered snail darter would cause the fed-

eral government to lose the tens of millions of dollars

already spent on the Tellico dam - a loss that would be

unrecoverable and would greatly outweigh the loss of the

snail darter. Id. The Supreme Court found that an unre-

coverable economic loss was not enough to refuse to

enforce the ESA. Nor is it a sufficient reason here.

VIL.

In perhaps the greatest fabrication in the Joint Appli-

cation for Stay — one begging for the imposition of sanc-

tions — is paragraph 6. There, the Movants state that the

Court’s Injunction “orders no reduction measures or

required efforts by industrial, commercial, military or

irrigation well owners.” Joint Appl. for Stay at { 6. This is

patently false.

App. 58

On page 8 of the Injunction, this Court ordered the

following:

IT IS FURTHER ORDERED that Defendant

industrial, commercial, and military pumpers

shall comply with the discretionary water

restrictions. In the event that industrial, com-

mercial, or military water use increases, or that

municipal pumpers are unable to reach their

maximum allowable peak-to-base pumping ratio

requirements, the Court will consider imposing

further restrictions on industrial, commercial,

and military pumpers.

Court's Order at 8.

This Court specifically ordered the non-municipal

pumpers to comply with discretionary water restrictions.

Any suggestion to the contrary is untrue and will merit

sanctions in the future.

VIII.

Movants further argue that in order to comply with

the 1.2 times winter average peak-to-base pumping ratio

requirements, all outside water usage would need to be

prohibited. Joint Appl. for Stay at { 8. They state that

policing such requirements is beyond the resources of the

City government. This is another broad sweeping state-

ment with which the Court disagrees. For the majority of

the summer, the City has prohibited outside watering

during certain hours. If it was able to police those restric-

tions, it is surely able to police further restrictions. The

City has relied on voluntary compliance and citizen

reporting for policing the current watering ordinances,

App. 59

and there is nothing to suggest that they cannot continue

to do so.

IX.

In paragraph 9, Movants argue that the Injunction is

unnecessary at this time because conditions are expected

to improve. First, recharge of the Aquifer during the

rainy months in the last five years has failed to match the

withdrawals. Thus, each year, the Aquifer continues to

drop lower and lower and never regains the volume it

held the previous year. Therefore, it should be expected

that endangered species will continue to be taken

through next summer.

Second, regardless of whether conditions will or will

not improve, springflow continues to be below take an

[sic] jeopardy levels. As long as they remain below take

and jeopardy levels established by USF&W, Movants are

in violation of the ESA. See Loggerhead Turtle, 896 F.Supp.

at 1180. If conditions do improve, the Injunction allows

for the easing of restrictions as springflow conditions

improve.

Conclusion

This Court believes that a current emergency exists.

Springflows are below the take and jeopardy levels estab-

lished by USF&W. Several of the endangered species have

been moved to refugia. Although this is one of the steps

necessary to preserve the species, the Court is mindful

that some of the species do not reproduce regularly in

captivity, and some have never reproduced in captivity.

App. 60

This Court must see that its statutory mandate that the

species and their natural habitat be protected. For the

foregoing reasons, this Court will not stay its Injunction.

Accordingly,

IT IS ORDERED that Movant's Joint Application for

Stay is hereby DENIED.

SIGNED this 29th day of August, 1996.

/s/ Lucius D. Bunton

HONORABLE LUCIUS D. BUNTON III

SENIOR U.S. DISTRICT JUDGE

App. 61

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

MIDLAND/ODESSA DIVISION

SIERRA CLUB, Civil Action No.

Plaintiff, MO-96-CA-097

vs.

(Filed

SAN ANTONIO AND Sep. 10, 1996)

SAN ANTONIO WATER

SYSTEM, ET AL.

Defendants.

ORDER GRANTING FEDERAL DEFENDANTS’

MOTION TO CLARIFY OR IN THE

ALTERNATIVE, TO ALTER OR AMEND

COURT’S AUGUST 23, 1996 ORDER

Federal Defendants Department of Defense, U.S.

Army and U.S. Air Force have moved this court to clarify,

or in the alternative, to alter or amend its August 23, 1996

Order. The Court, having considered the Motion and all

submitted papers, finds that good cause exists to grant

Federal Defendants’ Motion. Accordingly,

IT IS HEREBY ORDERED THAT Federal Defendant's

Motion to Clarify, or in the Alternative, Alter or Amend,

the Court’s August 23, 1996 Order is GRANTED. The

second full paragraph on page 7 of the August 23, 1996

Order shall be amended to read as follows:

Non-discretionary water uses from the

Edwards Aquifer essential to the mission of any

military installation are not intended to be

App. 62

restricted by any required reductions in this

Plan. As federal defendants, the military bases

are expected to appoint a representative to

report to the court through the Special Master

monthly on the progress of negotiations for con-

tracting for potable or reuse water as a substi-

tute for the Edwards Aquifer groundwater. The

Court urges the military to pursue these projects

with all deliberate speed and to execute con-

tracts for substitute sources of water as quickly

as is feasible, considering the practical limita-

tions and legal requirements necessary to enter

into such contracts.

The third full paragraph order on page 8 shall be

amended to read:

IT IS FURTHER ORDERED that the mili-

tary pumpers pursue with dispatch to execute

contracts for substitute sources of water as

quickly as feasible, considering the practical

limitations and legal requirements necessary to

enter into such contracts. The military will

report to the court through the Special Master

on a monthly basis on the process of negotia-

tions for contracting for potable or reuse water

as a substitute for the Edwards Aquifer ground-

water,

IT IS SO ORDERED.

Date: September 9, 1996

/s/ Lucius D. Bunton

HONORABLE LUCIUS D. BUNTON, III

SENIOR JUDGE OF THE DISTRICT COURT

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.