Sierra Club v. City of San Antonio
| Decision Date | 30 April 1997 |
| Docket Number | No. 96-50636,96-50636 |
| Citation | 112 F.3d 789 |
| Parties | , 65 USLW 2735, 27 Envtl. L. Rep. 21,051 SIERRA CLUB, Plaintiff-Appellee, v. CITY OF SAN ANTONIO, et al., Defendants, NEW BRAUNFELS UTILITIES, Defendant-Appellee, v. 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 Atascosa Counties, and Bexar Metropolitan Water District, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stuart Nelson Henry, David O'Brien Frederick, Henry, Lowerre, Johnson, Hess and Frederick, Austin, TX, Renea W. Hicks, George, Donaldson & Ford, Austin, TX, for Sierra Club.
Elbert L. Hooper, Clinton Earl Jones, Hutcheson & Grundy, Austin, TX, for New Braunfels Utilities.
Russell S. Johnson, Wells, Pinckney & McHugh, San Antonio, TX, John A. Macleod, Luther Zeigler, Alexandre de Gramont, Steven P. Quarles, Crowell & Moring, Washington, DC, Lenard Eric Friedland, Davidson & Troilo, San Antonio, TX, Vann Culp, Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, TX, for City of San Antonio and San Antonio Water Systems.
Lloyd Garza, City Attorney's Office for the City of San Antonio, San Antonio, TX, for City of San Antonio.
Paul Bousquet, San Antonio Water System, San Antonio, TX, for San Antonio Water Systems.
David C. Shilton, U.S. Department of Justice, Environment & Natural Resource Division, Washington, DC, Robert L. Klarquist, J. Carol Williams, U.S. Department of Justice, Washington, DC, for U.S.
Samuel Wilhelm Goodhope, Javier J. Aguilar, Harry G. Porter, III, Deborah Anne Verbil, Office of the Attorney General for the
State of Texas, Austin, TX, for State of Texas.
James K. Presnal, Presnal & Associates, Austin, TX, for Texas Association of Nurserymen, Inc., Amicus Curiae.
Richard Clayton Trotter, Allan E. Parker, Texas Justice Foundation, San Antonio, TX, for John H. Shields, State Representative, Amicus Curiae.
Paul M. Terrill, Liddell, Sapp, Zivley, Hill and LaBoon, Austin, TX, for Farm Credit Bank of Texas and Farm Credit Property Rights Foundation, Amicus Curiae.
Stephen P. Allison, Charles William Shipman, Haynes & Boone, San Antonio, TX, for Redland Stone Products Co.
Louis S. Zimmerman, Marcy Hogan Greer, Bruce Allen Morris, Fulbright & Jaworski, Austin, TX, for Southwest Research Institute.
Michael E. Mears, Michael Jay Willson, Allen P. Beinke, Arter & Hadden, Dallas, TX, for United Services Auto. Assn.
Louis T. Rosenberg, North O. West, San Antonio, TX, for Bexar Metropolitan Water Dist.
Douglas G. Caroom, Sydney W. Falk, Jr., John H. Knox, Madison Jechow, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for City of Hondo, TX and City of Uvalde, TX.
Harvey L. Hardy, Adolph Darrel Jacobson, Hardy, Jacobson, Gazda & Jacobson, San Antonio, TX, for City of Leon Valley, TX.
Appeals from the United States District Court for the Western District of Texas.
Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.
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 abstention doctrine enunciated in Burford v. Sun Oil Co., 1 we vacate the injunction.
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.
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 complete drying up of the springs or render them intermittent.
In the area of the San Marcos and Comal Springs, the aquifer is home to five plant and animal species designated as endangered or threatened under the Endangered Species Act. 2 Of the five, one--the fountain darter--is found at Comal Springs. The fountain darter is an endangered 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.
In a prior suit, Sierra Club v. Babbitt, 3 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 abstention 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." 4 On remand, the district court declined to abstain, because at the time the Edwards Aquifer Act 5 (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 of the Endangered Species Act. 6 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 downstream 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 Conservation 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 everything 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 Burford abstention grounds. The Sierra Club moved for a preliminary injunction. After a one-day evidentiary hearing, the court denied the motion to dismiss and entered the preliminary injunction now on appeal. 7 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 economic 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 Reduction 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 demonstrate 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...
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