Sierra Club v. City of San Antonio

1915(b). pany, Its Behalf and All Other In- prisoner A seeks On who § 28 U.S.C. Pumpers, leave and appeal must obtain dustrial Commercial proceed IFP on Institute, in the On despite proceeding IFP Research Its Southwest proceed to so Stinnett, 102 F.3d and All Industrial v. Behalf Other and Jackson district court. Cir.1996). Pumpers (5th in Bexar 132, 136 Commercial and Counties, Atascosa United Services Au- screening financial We hold Association, Its Behalf tomobile On and PLRA re procedures of the and assessment All Other Industrial Commercial filing to be con fees are garding appellate Pumpers in Bexar and Atascosa Coun- a dis courts. When ducted the district ties, Metropolitan and Bexar Water Dis- proceed prisoner grants a leave trict court trict, Defendants-Appellants. must assess the district court appeal, IFP on pay filing and order partial the initial fee No. 96-50636. filing fee as

ment of the remainder Appeals, States United the case Accordingly, PLRA. by the directed Fifth Circuit. court so to the district is REMANDED may rule IFP motion on the the district court April and, payment order the granted, if 1915(b). pursuant appellate filing fee made, the district

After this determination to this court return

court shall proceedings.

further

REMANDED. CLUB, Plaintiff-Appellee,

SIERRA

v. ANTONIO, OF SAN

CITY al., Defendants,

et UTILITIES, BRAUNFELS

NEW

Defendant-Appellee, ANTONIO, Antonio San

CITY OF SAN City Hondo, Texas, Systems,

Water Municipal and All

On Its Behalf Other Commercial,

Industrial, Domestic City Pumpers Medina,

Livestock Texas, All

Uvalde, On Its behalf Municipal, Industrial, Commer-

Other Pumpers

cial, Domestic Livestock Kinney Counties, City of Uvalde Texas, Valley, Behalf and Its

Leon On Municipal, Live-

All Domestic Other Pumpers in Atascosa Bexar and

stock

Counties, Stone Products Com- Redland Henry,

Stuart Nelson David O’Brien Fred- erick, Lowerre, Johnson, Henry, Hess and Frederick, Austin, TX, Hicks, Renea W. Ford, George, Austin, TX, Donaldson & for Sierra Club. Jones, Hooper,

Elbert L. Clinton Earl Austin, Grundy, TX, Hutcheson & for New Braunfels Utilities. Johnson, Wells,

Russell S. Pinckney & Antonio, TX, McHugh, Macleod, San John A. Zeigler, Gramont, Luther Alexandre de Ste- Quarles, ven P. Moring, Crowell & Washing- ton, DC, Friedland, Lenard Eric Davidson & Troilo, Antonio, TX, Culp, San Vann Stubbe- man, McRae, Sealy, Laughlin Browder, & Midland, TX, City of San Antonio and San Systems. Antonio Water Garza, Lloyd City Attorney’s Office for the City Antonio, Antonio, TX, of San San City of San Antonio. Bousquet,

Paul Antonio Sys- San Water tem, TX, Antonio, San for San Antonio Water Systems. Shilton, Department

David C. of Jus- tice, Environment Natural & Divi- Resource sion, DC, Washington, Klarquist, Robert L. Williams, J. Department Carol of Jus- tice, DC, Washington, for U.S. Goodhope, Samuel Wilhelm Agui- Javier J. lar, Porter, III, Harry G. Deborah Anne Verbil, Attorney Office of the General for Austin, TX, Texas, supplying of Tex- ervoir central Texas. Be State State we cause hold that Sierra Club did not as. establish substantial likelihood of success Presnal, Associates, & Presnal K. James merits, light of on the the abstention doc Austin, TX, Association of Nurs- for Texas Co.,1 Oil Sun trine enunciated Inc., erymen, Amicus Curiae. injunction. vacate we Parker, Trotter, Allan E. Clayton Richard Foundation, Antonio, TX, San Texas Justice BACKGROUND Shields, Representative, for John H. State Amicus Curiae. City exclusively of San Antonio relies on the Edwards for its water. Other Terrill, Liddell, Zivley, Sapp, Hill Paul M. parts rely aqui- of central Texas also on the TX, LaBoon, Austin, for Farm Credit primary It supplies fer as source water. Property and Farm Credit Bank of Texas people over one million with water in San Foundation, Amicus Curiae. Rights Antonio alone. Allison, Ship- Stephen William P. Charles aquifer discharges Antonio, TX, water into the Gua- man, Boone, for Haynes & San dalupe River Basin the San Marcos and Redland Products Co. Stone Springs. According Comal to the Sierra Greer, Zimmerman, Marey Hogan Louis S. recharge aquifer Club annual of the for Morris, Jaworski, Fulbright & Bruce Allen years several has been exceeded the an- Austin, TX, Insti- for Southwest Research (withdrawals discharge plus springflow), nual tute. causing year. the aquifer level to fall each It Willson, Mears, Jay Michael Michael E. quo claims a continuation of the status Dallas, Beinke, Hadden, Allen Arter & P. inevitably complete will either lead to TX, Auto. Services Assn. United drying up springs render of the or them intermittent. West, Rosenberg, North O. San Louis T. TX,

Antonio, Metropolitan Water for Bexar In the area of the San Marcos and Comal Dist. plant Springs, aquifer is home to five Jr., species designated endangered Caroom, Falk, animal or Sydney Douglas W. G. Jechow, Bickerstaff, Endangered Species threatened under the Knox, H. Madison John five, McDaniel, Heath, Pollan, Act.2 Of the one—the fountain darter— Smiley, Kever & Hondo, Springs. Austin, TX, City- is found fountain City TX and Comal endangered species. an darter is Uvalde, TX. Hardy, Adolph Darrel Jacob- Harvey L. aquifer In 1996 suffered severe Jacobson, son, Jacobson, Hardy, & Gazda drought. spring Springs flow at Comal TX, Antonio, Valley, City of Leon San April through from June and then leveled fell TX. In off. June of the Sierra Club’s ex- zoologist “very or six thin”

pert observed five spring run uppermost in the fountain darters claims Springs. of Comal Sierra Club presented of fountain that it direct evidence REAVLEY, GARWOOD and Before deaths, injuries form of emacia- darter BENAVIDES, Judges. Circuit tion, scarcity young and a fountain darters flows, spring to the there is due low REAVLEY, Judge: Circuit spring flows a causal link between the low pumping preliminary from a and defendants’ appeal is taken expert aquifer. hydrology Antonio’s by the district court San entered anticipate further de- regulate of water from the stated he did the withdrawal August after Aquifer, large underground res- clines the water levels Edwards §§ 2. 16 U.S.C. 1531-44. 1. 319 U.S. L.Ed. (1943). Legislature level would rise in In 1993 the that the water Texas enacted the Act, creating

the fall. manage use control and Babbitt,3 suit, Club v. prior In a Sierra body, aquifer. An administrative the Ed court, same district filed in 1991 Aquifer Authority, wards was created to Secretary of Interi- Sierra sued the A oversee this scheme. dis Fish Wildlife or and the United States unconstitutional, trict court ruled the Act but Endangered Species Act. Service under the in 1996 the Texas Court unani claimed that the Fish Wildlife The suit mously upheld constitutionality facial “adequate adopt had Service failed to Barshop County the Act. Medina Under recovery plan” that Act. last This suit Dist., ground Water Conservation years, appeals and included several ed five (Tex.1996). 5.W.2d 618 district appeal one the Fifth Circuit. our court, case, if Babbitt concerns, particu abstention uphold Supreme the Texas Court were to the abstention, larly call sometimes constitutionality Aquifer Act, of the Edwards ing court abstention “to allow the for federal everything power Court in its “this would do comprehensive regulatory state’s scheme to [Authority] to allow the to function noth operate at competing without the risk ing [Authority].” that would frustrate the regulator tempts that and the feder between Shortly present after the suit was filed the al to control courts exercise over the same Barshop Texas ruled in the remand, entity.”4 On the district court de San case. Antonio and other defendants abstain, clined to because the time the moved to the suit dismiss on absten (described below) Aquifer Act5 had grounds. tion The Sierra moved for Club a been declared unconstitutional. The court injunction. preliminary one-day After a evi competing that no reasoned there was state dentiary hearing, the court denied the motion system place make would preliminary to dismiss and entered the in appropriate In under Burford. junction appeal.7 now on The court conclud court the 1996 this ordered Babbitt suit dis emergency presently ed that “an exists and missed as moot after the Fish and Wildlife endangered species occurring,” takes are plan. published recovery a revised Service a change “[w]ithout fundamental places water, region the value the on fresh a brought pending the suit The Sierra Club major Aquifer effort to conserve and reuse Spe the Endangered June of 1996 under water, implemented plans import sup complaint, seeking cies Act. certification plemental water, supplies region’s the class, alleges of a defendant that defendants quality of imper life and economic future “taking” endangered species in violation incorporated by iled.” The court reference a Endangered Species Act.6 The com Emergency “1996 Withdrawal Reduction enjoin plaint seeks defendants “to reduce Plan,” provides which for comprehensive reg by withdrawals the Edwards such levels of pumping aquifer. ulation from the necessary as are to maintain natu minimum springflows ral from the Comal and San granting injunction In its order Springs Marcos for the conservation sur immediately did impose court the Emer- endangered spe vival Plan, of the and threatened gency Withdrawal Reduction but did living cies at and from those downstream pumping spring order limitations on on based springs.” flows, The named defendants include the effect of which was that munic- governmen ipal San Antonio and numerous other defendants were limited to water use of private tal usage. entities. 1.2 times their winter The court (W.D.Tex.). 29, 1995, R.S., Leg., May 3. No. Mo-91-CA-069 74th ch 1995 Tex. Law Sess. Serv. 2505. Babbitt, (5th 4. Sierra Club v. 81 F.3d Cir. 1995), 1538(a)(1)(B). 6. See U.S.C. R.S., May Leg., stayed injunction 5. Act pending 73d ch. court has appellate 1993 Tex. Gen. Laws as amended Act of review. prelim- Authority properly a whether court entered the Edwards found that injunction. inary question be- The latter turns learning to overcome great a curve “has It the Sierra established a ready manage Aquifer.” on whether fore of success on remain effect substantial likelihood the mer- ordered that a in the its face can demonstrate until the defendants by the Edwards doctrine. management plan critical preserve endan- that will Club failed meet the Sierra operative. It ordered also gered species requirement injunc a preliminary first special supply court and a parties to likelihood of tion —a substantial success usage monthly informa- master with appears merits —because abstention so “necessary to information tion and all other manifestly warranted under Burford. compliance informed as keep the Court Burford, plaintiff brought Oil Sun with this Order.” a Texas challenging suit Railroad Commis granting drilling permit sion order to de DISCUSSION permit Oil fendant Burford. Sun claimed seeking party preliminary process rights. violated due (1) a injunction must establish: substantial held the federal district should (2) merits, of success on likelihood abstained, noting comprehensive na have grant failure to threat substantial scheme, large ture of (3) irreparable injury, injunction result in will in regulating of and con interest the state injury outweighs the threatened resources, serving gas its oil and and the injunction will cause the damage approach granting per a to need for unified (4) injunction opposing party, and body. by single adjudicatory a mits The public not interest.8 will disserve the Factually, very and case our are in deny preliminary a grant to or decision emphasized Burford, In similar. the Court abuse of junction is reviewed for discretion.9 comprehensive nature of the elaborate and Likewise, de generally we in regulatory scheme issue. It the state stand an of discretion cisions under abuse Railroad un- described the Commission order ard.10 “part general consideration as of der regulatory system devised for conserva- contends that The Sierra Club Texas,” noted gas tion of oil and that the not to under district court’s decision abstain pro- out functions of appeal, us “carries properly before Commission is not proration by an argument.11 The control or elaborate this duction but we find no merit to orders, schedules, reports,” and system of of question not ultimate issue before us is abstain, provid- but and the state whether the district court should 1292(a)(1). 1103, (5th § 28 did Taylor, under U.S.C. v. 932 F.2d 1107 8. Lakedreams Gulfstream Cir.1991). injunction. attempt was an to not involve an It stay appeal a or dismiss the denial of motion to Id. grounds. The Sierra Club also on abstention Inn, 930, Inc., 922, 422 U.S. Doran v. Salem cites Opelousas Co. v. Bank and Trust 10. American of (1975), 45 648 S.Ct. L.Ed.2d 95 Dent, (5th Cir.1993). F.2d n. 6 preliminary a that "the issuance of which states subject of denying not to the restrictions argues The that an order Sierra Younger." inapposite was appealable not under case is because it abstention is Gulfstream Aerospace Corp. Mayacamas Corp., v. discussing of a whether the refusal court not (1988), and L.Ed.2d immediately appealable. quoted abstain is attempting "end run” defendants are an part of passage of a whether was discussion by treating ar- their abstention around this rule Harris, Younger appeal granting an gument of an order as (1971), applies plaintiff has to a who L.Ed.2d 669 injunction. argument. to this There no merit proceed- yet subjected to state criminal not been goes court have abstained Whether should was ings, no. The to which the Court’s answer likely plaintiff directly whether was abstention, nor did did discuss are enti- on the The defendants succeed merits. ruling. appealability discuss of an interlocutory argument in this tled to raise this appeal injunction, plainly which is allowed of the organized system regulation Texas, paramount been a especial ed a “well concern in ly times, today, review.”12 like devastating drought.”14 It characterized Edwards Similarly, Aquifer Act the Edwards can primary as “the source water for comprehensive fairly characterized as a be part residents the south central of this represents sweep- It scheme. general economy state. It is vital to the ing Legislature regu- the Texas effort welfare of the State of Texas.”15 The court regard for aquifer, late the with due all com- responsi that “the State peting aquifer’s for the water. demands bility pre under the Texas Constitution to Aquifer Authority Act the Edwards vests serve and conserve water resources for the powers privileges necessary with “all the benefit of Texans.”16 Legisla all The Texas conserve, manage, preserve, protect ture, speaking through § 1.01 of the Ed aquifer____” Authority controls Act, aquifer wards found that the through per- “is aquifer withdrawals unique complex system. hydrological system, charges mit Section 1.25 of the Act Aquifer Authority with develop- diverse economic and social interests ing comprehensive management dependent aquifer supply.” “a on the water conservation, plan sup- that includes future correctly The defendants note that both ply, management plans.” and demand aquifer species endangered and the specifically preserva- also addresses intrastate, entirely management which makes endangered species. tion of Under 1.14 of aquifer of the peculiar impor matter of Authority “protect aquatic the Act the must tance to the state.17 “protect species wildlife habitat” and record case also illustrates the designated that are or threatened endan- vital importance aquifer to the citizens gered applicable or state law.” president central Texas. For example, the empowered to file civil suits System San Antonio Water testified injunction. state district for an injunction’s that the limitation water use addition, separate entity, the Texas Natural average to 1.2 likely times winter use would Commission, Resource Conservation is au- require city the to maintain lower water § 1.39- thorized under to file suit pressure than state requires fighting law against for an of order mandamus the Au- consulting fires. A engineer City for the of thority compel perform to the to Valley Leon testified that the restrictions its duties. would complete necessitate the curtailment emphasized regula that the state Burford watering, of resulting damage outside in to tory in “very scheme the issue concerned city 50% of the in foundations the with dam- large” of conserving interest the state in oil ages ranging to each home from to $2000 gas, the Railroad Commission’s $20,000. Other defendants offered similar regulation gas oil and production of was “of through evidence affidavits. vital general public interest to the ... with implications in economy Burford, to the As whole of there is a need for unified regulation management decision-making state.”13 The regarding of resources is great aquifer, likewise a matter of allowing party state concern. since to one take necessarily As the parties. Texas Court stated in Bar- water affects other shop, always of in many “[conservation water has noted that for rea- 12. at separately argue 320 n. 17. applying at The defendants 1099-1100, 1101 n. 1104. Endangered Species Act to these circum- beyond power Congress regu- stances is of to 320, 324-25, Id. at 63 S.Ct. at 1102- 13. late interstate commerce and therefore unconsti- 03. urged tutional. The United States has that we unless, appellate not reach this issue other all 14. S.W.2d challenges temporary injunction being to the first rejected, necessary it becomes do so in to order 15. Id. at 623. appeal. resolve We do reach Id. constitutional issue. regulat opinion goes “[a]s on to state that gas field must be with “each oil and sons ], oil in in fields issue unit,” proration spacing and [Burford as a that well ed case, clearly present Texas an in interest system integrated single of a part “are decision-making regarding uniform this finite together,” “[t]he and that must be considered of amount water.”22 provides a for the for unified method state argues The Sierra Club that abstention is cases policy and determination of mation of only it not warranted because seeks relief by state by the Commission law, Endangered Species under a stressed need courts.”18 Act. The district court noted in the Babbitt unitary of enforcement normally case that “Burford problem drainage: by noting in arises a case which federal court has field, through oil the entire “Since the moves diversity jurisdiction exclusively over state operator only can not draw oil from one law issues.” Our court has stated that one area, also, can if own surface but his deciding factor is whether absten located, advantageously is drain oil he apply tion should whether cause parts the most distant the reservoir. action arises under federal or state law.23 from under practice attempting drain oil However, states itself holdings of leads to offset the surface others jurisdic appropriate abstention is whether practices; and this wells and other wasteful diversity premised jurisdiction tion or by fact problem is increased should, otherwise, if the federal courts con split up many rights are into small surface system, comity sistent with our federal afford physi that “the tracts.”19 Court noted governments carrying out their permit such that an additional cal facts are policy. “Although domestic The Court held: away. may pressure on a well miles affect jurisdiction equity a federal court does have applied the Commission standards proceeding, may, particular of a in its necessarily given case affect the entire discretion, jurisdiction sound whether system.”20 state conservation ground diversity invoked on the citizen otherwise, ship pro or or ‘refuse enforce surely regulation of Similar concerns affect legal may rights, tect the exercise of which aquifer. As Bab- our court stated interest’; prejudicial public for it ‘is be appeal: bitt public in the that federal interest courts aquifer contains a finite [t]he equity discretionary their should exercise water, such, amount of and as the need for regard rightful power proper regulation paramount. uniform The Su carry in independence governments of state preme that such cir ing policy.’”24 out their domestic Burford require cumstances sometimes federal not so much turn on whether abstention does com courts to abstain allow the state’s alleged plaintiffs cause of action is prehensive regulatory operate scheme law, on federal or state as does whether attempts competing without the risk of any plaintiff’s may way “in claim be regulator between that and entangled in a skein of state law that must be untangled proc to exercise control over the same federal case can courts before the Moreover, our is not distin- entity.21 eed.”25 case 317-18, 319, 15, at at 63 S.Ct. at 1098-1100 18. 319 U.S. at 323 n. 63 S.Ct. 24. 319 U.S. 1100, 15, Dern, (quoting v. n. 1107-08. ex rel. Greathouse 1103 United States 360, 617, 352, 614, 77 289 U.S. 53 S.Ct. L.Ed. 319, Id. 63 at 19. at S.Ct. 1099-1100. Williams, (1933) Pennsylvania and v. 294 1250 380, 385, 176, 185, 55 S.Ct. 79 L.Ed. 324, Id. at 20. 63 S.Ct. 1102-03. (1935)). ). Opinion (citing 21. at 793 Burford -Co., v. Quackenbush 25. Allstate Ins. 1712, 1726, -,-, 135 L.Ed.2d Id. at 793 n. (1996) (quoting Ed. Com- McMeese Board for Dist., munity Membership Corp., Sch. Valley Unit 23. Wilson v. Elec. (5th Cir.1993). (1963)). F.3d L.Ed.2d old, guishable comprehen- the cause of was it was a because scheme but that Burford on federal law. In as governing action is based sive scheme a matter of vital state Burford well, alleged interest, of action was application the cause and one uniform where order of Railroad Commission had denied important. rules was These same con- If plaintiffs of law.”26 absten process apply “due to our cerns case. plaintiff when is claim tion is warranted In its brief Club the Sierra defends rights, ing a of his constitutional violation injunction by that it arguing was entered surely then it is also warranted where the only after the court “was informed that the plaintiff statutory a federal violation. claims Authority], Aquifer night [Edwards The reasoned that abstention district court preliminary hearing, before Aqui-

was because the Edwards unwarranted against declaring emergen had voted develop Authority fer had not had time to cy____” In denying motion to dismiss on plan aquifer dealing managing for grounds, the district court noted emergency with the situation. The record Aquifer Authority “the Edwards voted Authority process indicates that the is in the 31,1996 July hearing emergen that an taking formulating rules comments and cy emergency did not exist and no thus mea permits emergency measures. Court, sures needed to be taken.... State informs us an amicus brief documentary on the based testimonial Authority “is now estab- date, heard to evidence believes than an begun operations.” sup- lished and has emergency does exist.” What the court’s plemental points out filing San Antonio willing action indicates is that isit to abstain on December issued authority agrees as long the state with it. filing processing permit final rules for purpose of abstention is to dis Burford applications, period manage- and for critical such courage second-guessing federal court ment. of state matters. absten particularly tion appropriate “[b]y where not believe that ab We do proceeding the only district would applicable stention is where the state have reaching a risked different answer than fully place. greater [state] institutions with interest has noted that “[w]e have familiarity with such matters.”28 provided generalized descriptions since more doctrine, see, e.g. ... Colora argues Sierra Club the Edwards (abstention do River where ‘exercise of fed Aquifer provide does not state court question eral and in review of the a case judicial plaintiff such as itself. similar disruptive cases would be correct, may since, Sierra be unlike policy to establish coherent efforts Act,29 Endangered Species there is no respect public to a matter of conc substantial private express citizen cause action creat ern’)”.27 ed in the Edwards Act for entities only significant judicial factual be- groups distinction such as environmental to seek tween our statutory the Rail- redress violations. The defen Burford —that regulatory argue provision road in Commission’s scheme dants that there is state Act, 1.11(h) § was a sound in well established —is not court review the since state Burford concluding provides basis for is not of the Edwards that the reasoning Authority subject warranted here. of is to Texas the Administra Burford unclear, regulatory however, did not turn on the fact that the tive Procedure Act.30It is ’ 1540(g). § 26. 319 U.S. at 63 S.Ct. at 1098-99. 29. See 16 U.S.C. - Quackenbush, at-,

27. S.Ct. at 30. Texas Administrative Procedure Act is added; (emphasis quoting Colorado River § now codified Gov't Code 2001.001 Ann. Tex. States, Conservation v. United Dist. (Vernon Supp.1997). etseq. 1236, 1244-45, L.Ed.2d (1976)). 28.Wilson, 311 at F.3d gives plaintiffs, migrant farm private cause case the work provision

whether this ers, injured and state an environ- were received worker standing on action or confers compensation They benefits. then sued un But as group like Sierra Club. mental Migrant above, Agri der the federal and Seasonal Au- explained the Edwards cultural Act.34 with endan- Worker Protection The Court thority charged protecting is providing held state law that work to file that the species and is authorized civil gered injunctive compensation er who receives worker’s can district suits state relief, not other did Texas recover benefits not bar separate entity, Natu- Commission, plaintiffs pursuing their federal is ral Resource Conservation remedy. adopt It stated that “we refuse to suit for an order of manda- authorized to file compel pre-emption principle ‘reverse’ against [defendant’s] to it to mus that would authorize States to withdraw fed its perform duties. by establishing eral state remedies remedies Supreme has described Burford point is not on exclusive.”35 case “[wjhere timely applicable abstention as since it not does discuss abstention. adequate state-court review is available.”31 may confusing preemption be Sierra Club However, authority no find we with abstention. apply plaintiff abstention cannot unless judicial cause of private, himself action has Regardless, agree we with the Sierra scheme, regulatory under the state that, general proposition, Club aas a State recently has stated that should be able to create a not determining there no “formulaic test regula scheme then claim that federal appropria when dismissal subject tion of same matter does not te.”32 apply. it argues In effect the state Act has federal of its dissent, “preempted” federal Judge “dissent” —a Benavides’ claim deciding if the federal court abstains. The re judgment, from the but from however, sponse argument, to this that the posses- the Sierra as the appeal —treats thing happens same whenever a federal court right of a rather than sor claim one plaintiff a fed abstains and asserted standing. true here is that of interest always eral This is almost claim. public preservation of the fountain in the abstention,36 Younger plain where with rationale of darter. The court, brings seeking tiff suit federal regulation of by is served the state’s enjoin proceeding grounds that his a state than resource rather enormous water rights being violat least, federal constitutional appears court. At to be federal ed. preliminary true from this record. Club, against the Sierra

We no bar in the Sierra Another weakness Club’s pursuing or in either merits ultimate “negative preemption” argument is that the protect and darters if the efforts water Species fairly Endangered Act cannot be de- fails to do State Texas so. attempt preempt all state scribed as an argues protec- that abstention law related conservation Sierra Club endangered species. The Act itself “negative preemp be to create tion cannot used tion,” states: “It is further declared be meaning up that a state cannot set policy Congress Agencies Federal regulatory scheme and then claim that a own Agen- ignored. cooperate shall with and Local should be State Barrett,33 cies to concert It cites Fruit Co. v. resolve issues Adams Serv., etseq. 31. New Public Inc. Council 29U.S.C. Orleans Orleans, City 491 109 New U.S. S.Ct. of 2506, 2514-15, (1989). 105 L.Ed.2d 298 648, 35. 110 S.Ct. at 1390. 494 U.S. Quackenbush, at-,

32. -U.S. 116 S.Ct. at 37, Harris, Younger 36. 91 S.Ct. See 1726. (1971). 669 27 L.Ed.2d 1384, 108 33. 494 110 S.Ct. L.Ed.2d U.S. (1990). 585 endangered species.”37 conservation of appears The abstention merits —because so language Act suggest manifestly of the federal does not warranted under Burford.” to be abstention is avoided in cases brought under it. I. Congress When Endangered enacted the argues Club also The Sierra Act, Species explicitly provided it “any apply abstention should not because there is person may a civil commence suit on his own proceeding underway no state administrative enjoin any person behalf to ... who is al proceeding with which the federal con leged chapter to be in violation this or argument factually flict. We find this regulation authority issued under the there legally Factually, unavailing. the record in of. ...” 1540(g)(1)(A). § ap U.S.C. Aquifer Authority dicates that the Edwards pellants acknowledge that the district court proceeded rulemaking grant subject jurisdiction had federal matter in this ing permits period critical manage pursuant § to 28 U.S.C. 1331 and the ment, already and has declined to declare an Endangered Act, Species 16 U.S.C. emergency. court’s The federal 1540(c).1 § Supreme long Court has Legally, conflicts with actions. these Bur- recognized that federal courts have a “virtu require not abstention does the exis

ford ally unflagging” obligation to exercise the ongoing tence of an state proceeding with jurisdiction upon by conferred- them Con directly which the federal court action inter See, NOPSI, gress. 359, 109 e.g., 491 U.S. at requirement feres. found with Youn Although S.Ct. at duty 2513-14. this is not ger abstention, applies which “when federal absolute, exception, is “the not the jurisdiction pend would interfere with rule.” Colorado River Water Conservation criminal, civil, ing or administrative state States, 800, 813, Dist. v. United U.S. requires proceedings,” pending “the 1236, 1244, (1984). 47 L.Ed.2d 483 proceeding ongoing judi must be Specifically, recently Court has cial in nature.”38 emphasized that applies reasons, For we these conclude that only range in a “narrow of circumstances.” granting prelimi- district court erred in Quackenbush Co.,— v. Allstate Insurance nary injunction. granting The order in- -, -, 1712, 1725, U.S. 116 S.Ct. junction is VACATED. (1996). L.Ed.2d II.

BENAVIDES, Judge, dissenting: Circuit Supremacy provides Clause that fed- applies abstention doctrine supreme eral law “shall be the Law only timely adequate “[w]here state- ..., any Land Thing the Constitution or court review is available.” New Orleans any the laws of Contrary State to the not- Serv., Pub. City Inc. v. Council New Const, VI, withstanding.” § art. 2. Orleans, Supremacy makes Clause law (1989) (NOPSI). 105 L.Ed.2d 298 Be- binding every “Judges State.” Id. cause the administrative scheme enacted Pursuant provision, to this constitutional the State adequate of Texas afford does state courts obligated judicial to exercise judicial Sierra review the Club’s federal properly review of federal claims within their claim, Therefore, inapplicable. I jurisdiction. agree majority’s cannot with the conclusion that “[t]he Sierra failed to meet the Abstention involves federal court’s refus- requirement first preliminary injunc- jurisdiction al to clearly possesses exercise tion' —a substantial likelihood of in favor jurisdic- success on of a state court’s exercise of 1531(c)(2). § 37. 16 Endangered Species U.S.C. provides "[t]he several district courts of the United States Dist., Navigation jurisdiction Baran v. ... shall Port Beaumont have over actions aris- (5th Cir.1995). ing 1540(c). 57 F.3d chapter." 16 U.S.C.

799 Thus, expeditious adequate.” in Burford, [was] federal court abstains when a tion. 334, question present- at at is 319 U.S. 63 S.Ct. 1107. Essential in which a federal a case moreover, conclusion, obligated this fact ed, to exercise was the state courts If, for some the that claim. that state courts were available to hear judicial review of reason, juris- plaintiffs’ process In does not have the federal due claim. the state court claim, regard, specifically the federal abstention this Court noted that to review the diction example, procedure court For this “if the state is from the inappropriate. followed Court, Supreme abstention to the State has that Commission Burford questions court has exclu- ultimate review of the federal inapplicable when a federal plaintiffs fully preserved federal Id. jurisdiction over here.” sive Dale, 975, 896 978- See v. F.2d claim. Evans Similarly, in Public Alabama Service Com (5th Cir.1990). 79 Co., Railway v. mission Southern required has Court Burford 762, 765, 1002 S.Ct. L.Ed. first, only in eases. The Bur two (1951), plaintiff challenged an order of Co., 315, U.S. v. Sun Oil ford the Alabama un Public Service Commission (1943), 1098, 1098-99, 87 L.Ed. 1424 S.Ct. argued der state law and that the order validity of an challenge to involved a property “amounted to a of its confiscation of the Texas Railroad Commission. order violation of the Due Process Clause of the plaintiffs state law claims asserted Fourteenth Amendment.” held Court order violated argued the Commission’s of “adequate that because review an adminis of right process law under their due predominantly upon trative order local based 317, at at 1098- Id. Constitution.2 appellee, [was] factors available to interven ultimately that the The Court concluded necessary a not [was] tion of federal court stay its court hand because federal should 349, protection rights.” of federal Id. at pur litigation court “threatened federal emphasizing adequa at 768. 71 S.Ct. system complex of the administrative pose cy plaintiffs of the of state-court review fed Quackenbush, Texas had established.” that — claim, the noted eral constitutional Court at-, (citing 116 S.Ct. at 1725 U.S. plaintiff “ha[d] that the shown that the 332, 1106- Burford, 319 at 63 S.Ct. at procedure of Alabama for review Commission 07). way inadequate pre in any [was] orders however, conclusion, reaching review this Court Prior to serve ultimate arising of “judicial questions out such orders.” the Court noted state courts Id. Commission’s decisions sug- repeatedly emphasized guishes the instant case from

2. The Burford Burford gests appropriate. predominant is not law were and that state issues Cf. NOPSI, 109 S.Ct. at 2514-15 friv- claim bordered on the federal constitutional See, (reversing application ab- this court’s e.g., 63 S.Ct. at 1103 olous. id. noting ("While that the case did not involve power stention of the Commis- constitutional claim); Valley Mem- a state-law Wilson Elec. challenged or to make rule] sion to enforce [the Cir.1993) (5th Corp., bership 8 F.3d challenged, exceptions seriously to it is seldom (holding the cause arises that "whether of action validity particular orders from the stand- under federal or law” is relevant factor state statutory interpretation may present point of abstention). assessing applicability problem, serious substantial number disposed cases the Texas such have been power give defi- which have the courts alone that its concern was "limited 3. The noted posed questions of nite answers to the State law propriety to the of a federal court (citations omitted)); proceedings” id. at regulatory in those enjoining of a state or- enforcement ("The federal court has at 1104 Id. at 63 S.Ct. at 1113. The instant der." constantly upon wheth- distinguishable been called determine from both case is er the Railroad Commission has acted within Public Commission because Alabama Service authority, important scope statutory injunctive while the relief does not involve an action have, against constitutional issues the federal state For this commission. said, reason, moreover, fairly repeatedly fed- been well settled the Court's concern about course, beginning"). undisputed, with state or- It is eral court interference implicated by law- no law claims ders is not the Sierra Club’s Sierra Club has asserted against appellants. against appellants. This fact alone distin- suit majority explain justifica- challenging does not Authority. an order of the finding “adequate tion for state-court Second, accompanying See note 3 and text. NOPSI, review is available.” 491 U.S. at adequate Authority’s review of the decisions only pre- 109 S.Ct. at 2514. One can change does not the fact that there is no sume that it reaches this conclusion because judicial review of the Sierra Club’s federal Aquifer Authority charged “the Edwards claim. protecting endangered species and is Adequate plaintiffs state-court of a authorized file civil suits state district necessary federal claim is a prerequisite to relief, injunctive separate court for and a First, abstention for two reasons. Bwrford entity, the Texas Natural Resource Conser- noted, Supremacy requires Clause Commission, vation is authorized to file suit state courts to enforce federal laws. It against for an order of mandamus the Au- purposes would defeat the underlying that thority compel perform it to its duties.” protection for federal courts to abstain in Nonetheless, majority concedes that “[i]t raising cases federal claims where the state ... Aquifer [the unclear whether provide adequate judicial courts do not re- gives private Act] cause of action or confers Second, view of those adequate claims. standing on an group environmental like the state-court plaintiffs review of a Sierra Club.” necessary claims is to ensure that the Su- Similarly, appellants argue that state preme Court jurisdiction is able to maintain timely

remedies “afford adequate review over those claims should the state courts fail Authority’s protection endangered provide protection sufficient for federal species.” This contention is debatable be- rights. authorizes, only cause Act but does not require, and the Texas Natural III. Resource pro- Conservation Commission endangered species. any event, tect majority Neither appellants nor the appellants’ argument point. misses the seriously dispute the Sierra Club’s contention bring that it cannot Endangered Species important While it was that the state ad- Act claim auspices within the of the Edwards ministrative schemes in and Ala- Bwrford Instead, Act.4 app.ellants claim bama provided Public Service Commission that the “Sierra bring Club is free to its ESA adequate judicial review of the orders of the ” claims in the State courts of commissions, Texas.... As only that was because the suming true, however, this is appellants’ plaintiffs challenging were orders of the com- argument ignores the missions, justifying rationale who were defendants in those place. abstention in the first Adequate cases. review of the commissions’ Bwrford orders in necessary, those cases was a albeit explained Court has insufficient, justification applying Bwrford protecting is concerned with com “Bwrford Indeed, abstention. the Court relied on the plex state processes administrative from un fact “adequate that there was state-court re- NOPSI, due federal interference.” 491 U.S. plaintiffs’ view” of the federal claims. Therefore, 109 S.Ct. at 2515. in an Thus, assuming even case, appropriate Texas’s adminis- a federal court must defer provides adequate judicial trative scheme re- to the state court’s administrative scheme. activity Authority, view of the In the adequate absence of review of a justify does not this court’s plaintiffs exercise of Bur- scheme, federal claim within that First, however, abstention. adequacy judi- deference to state courts does not ford Authority’s cial review of the action policies is irrele- further justifying abs vant in this case because the Sierra tention.5 majority 4. The judicial "[t]he concedes that statutory Sierra Club seek redress violations.” correct, since, (citation may omitted). Endangered be unlike the Act, Species express private there is no citizen cause of action created in the Edwards Community See McNeese v. Board Educ. Unit for entities such groups as environmental Sch. Dist. 83 Appeals, concentrated in one Code. that Alabama authority proposition find To court, character.”); supervisory in must occur circuit review” “adequate state-court scheme, NOPSI, 374,109 at 2521-22 one 491 U.S. at S.Ct. administrative the state within C.J., (agreeing (Rehnquist, concurring) itself. with than no further look need Burford inappropriate, ab- the need for abstention was There, explained the Court that the Court compre- noting uniform and not foreclose the in favor of a but that he “would staining review: in a case possibility of state-court abstention scheme hensive Burford ... the State consolidated review [where] multiple re- prevent the confusion To ratemaking in a local bodies issues, legis- the orders of general of the same view power court with to hear specialized all di- state provided for concentration lature claim”). preemption federal orders of the Commission’s rect review County. of Travis courts district the State Endangered Species Act Club’s The Sierra authoritatively de- courts have The Texas cannot be raised within scheme claim If an of this restriction: purpose clared regulate has established to Ed- that Texas face, commission, on its lawful of the order important In this Aquifer water. wards various collaterally attacked can be sense, then, state’s administrative grounds of the state and counties courts comprehensive in not uniform and scheme is case, in the instant urged as those such Supreme has manner the the same result____ would confusion interminable fact, very “the dispositive. considered judicial supervision Concentration seeks to doctrine confusion” permits orders Railroad Commission by many result “from review avoid would courts, Commission the Railroad like state brought of claims under the state courts” knowledge itself, specialized acquire a Burford, 319 Endangered Species Act. U.S. shaping policy of is useful which at 1104. at 63 S.Ct. ever-changing demands regulation of the field____ very “confusion” in this IV. legislature [State] and the which the Texas might result feared Supreme Court argument appellants’ abstention Rail- by many courts of the state nothing plea than a for this more amounts resulted orders has Commission’s road duty a feder abrogate its to enforce court to juris- equity of federal from the exercise by private citizens Con right granted to al diction. potentially doing so would gress because (internal interests.6 The important local conflict with at 1104 at 63 S.Ct. however, omitted). recognized, also See quotations and citations require Comm’n, “does not at U.S. Pub. Serv. Alabama administrative [a exists state (“Statutory appeal whenever there at 767-68 where there is even in all cases process], or is an inte- order of the Commission from an ‘potential for conflict’ with regulatory process under part of the gral estab- 1437-38, (1963) agreement State which (declining ... with ative 10 L.Ed.2d desegre- pro- adequate and active in a school an apply lishes and maintains brought pursuant endangered species gation to section gram for the conservation provided 1535(c). that state law it was not clear § because species.” Id. and threatened remedy plaintiffs suf- “with an administrative Thus, Endangered Species establishes Act prior preclude resort to a ficiently adequate to whereby federal states can minimize avenue an protection of their court for federal rights”). Nonetheless, appellants do not interference. procedures outlined have followed the claim to Indeed, Congress that enforcement agree- cooperative entering into a in the Act for might Endangered Species conflict government. See id. the federal ment with U.S.C. important interests. See 16 with local 1535(c)(1). appellants claim § Nor do the Therefore, Congress “[i]n declared that § 1535. pro- "adequate and active established have program [the carrying ESA], authorized out endangered spe- gram the conservation of cooper- Secretary Interior] shall [of circumstances the Act. See id. These cies” under practicable the maximum extent ate to majority's to the state's deference render the 1535(a). regard, Congress In this States." Id. particularly unwarranted. administrative cooper- Secretary "to enter into authorized the NOPSI, policy.” or at law (quoting at 2515 Colorado River Water

S.Ct. Dist.,

Conservation 1245-46). important, ap- More flatly

pellants’ contention is inconsistent with governmental system in which federal law supreme. Aquifer Act

Because the Edwards does not judicial

provide adequate review of the Sierra claim, I would find

Club’s federal the Bur- inapplicable abstention doctrine

ford arguments would reach the raised respect

appellants extraordinary to the appealed

and extensive order from herein. reasons, foregoing respectfully

For the I dis-

sent. America,

UNITED STATES of

Plaintiff-Appellee, KNOX; Brace,

Shannon David

Defendants-Appellants.

No. 96-50340. Appeals,

United States Court

Fifth Circuit.

1,May

Case Details

Case Name: Sierra Club v. City of San Antonio

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 1, 1997

Citation: 112 F.3d 789

Docket Number: 96-50636

Court Abbreviation: 5th Cir.