IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50636
_____________________
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, 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
_______________________________________________________
April 30, 1997
Before REAVLEY, GARWOOD and BENAVIDES, Circuit 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 abstention 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.
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,
1
319 U.S. 315 (1943).
2
16 U.S.C. §§ 1531-44.
2
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
3
No. Mo-91-CA-069 (W.D. Tex.).
3
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 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 Wildllife
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.
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.
6
See 16 U.S.C. § 1538(a)(1)(B).
4
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
7
This court has stayed the injunction pending appellate
review.
5
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 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.”
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 injunction will cause the opposing
party, and (4) that the injunction will not disserve the public
6
interest.8 The decision to grant or deny a preliminary
injunction is reviewed for abuse of discretion.9 Likewise, we
generally review abstention decisions under an abuse of
discretion standard.10
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 argument.11 The issue before us is
not the ultimate question of whether the district court should
abstain, but whether the court properly entered a preliminary
injunction. The latter question turns on whether the Sierra Club
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
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.
7
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 Railroad 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 comprehensive
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 comprehensive
nature of the state regulatory scheme in issue. It described the
Railroad Commission order under consideration 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 orders, schedules, and reports,” and that the state
regulatory scheme provided a “well organized system of regulation
and review.”12
12
319 U.S. at 318, 320 n.12, 327.
8
Similarly, the Edwards Aquifer Act can fairly be
characterized as a comprehensive regulatory scheme. It
represents 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 withdrawals from the aquifer through a permit
system. Section 1.25 of the Act charges the Edwards Aquifer
Authority with developing “a comprehensive water management plan
that includes conservation, future supply, and demand management
plans.” The Act also specifically 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 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 Commission’s regulation of oil
and gas production was “of vital interest to the general public .
9
. . with implications to the whole economy of the state.”13 The
regulation of water resources is likewise a matter of great state
concern. As the Texas Supreme Court stated in Barshop,
“[c]onservation of water has always been a paramount concern in
Texas, especially in times, like today, of devastating
drought.”14 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.”15 The court recognized that “the State has the
responsibility under the Texas Constitution to preserve and
conserve water resources for the benefit of all Texans.”16 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 makes
management of the aquifer a matter of peculiar importance to the
state.17
13
Id. at 320, 324-25.
14
925 S.W.2d at 626.
15
Id. at 623.
16
Id.
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
10
The record in this case also illustrates the vital
importance 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 damages 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 allowing one party
to take water necessarily affects other parties. 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 integrated 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 and by the state courts.”18 The Court stressed the
need for unitary enforcement of the regulatory scheme by noting
the problem of drainage: “Since the oil moves through the entire
temporary injunction being first rejected, it becomes necessary
to do so in order to resolve this appeal. We do not reach any
constitutional issue.
18
319 U.S. at 319, 323 n.15, 333-34.
11
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 problem 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.”20
Similar concerns surely affect regulation of an aquifer. 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 sometimes 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.21
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
19
Id. at 319.
20
Id. at 324.
21
Opinion at 6 (citing Burford).
22
Id. at 6 n.4.
12
The Sierra Club argues that abstention is not warranted
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.23
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 domestic policy.’”24 Burford abstention does
23
Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314
(5th Cir. 1993).
24
319 U.S. at 317-18 (quoting United States ex rel.
Greathouse v. Dern, 289 U.S. 352, 360 (1933) and Pennsylvania v.
Williams, 294 U.S. 176, 185 (1935)).
13
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 distinguishable 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 Commission had denied plaintiffs “due process of
law.”26 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
emergency 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 Authority issued final rules for
filing and processing of permit applications, and for critical
period management.
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 U.S. at 317.
14
We do not believe that Burford abstention is applicable only
where the state regulatory scheme is fully in place. The Supreme
Court has noted that “[w]e 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 establish a coherent policy with respect to a
matter of substantial public concern’)”.27
The only significant factual distinction between our case
and Burford -- that the Railroad Commission’s regulatory scheme
in Burford was well established -- is not a sound basis for
concluding that abstention is not warranted 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 its July 31, 1996 hearing that an
emergency did not exist and thus no emergency measures needed to
27
Quackenbush, 116 S. Ct. at 1725 (emphasis added; quoting
Colorado River Conservation Dist. v. United States, 424 U.S. 800,
814-16 (1976)).
15
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
willing 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,29 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
subject to the Texas Administrative Procedure Act.30 It is
unclear, however, whether this provision gives a private cause of
action or confers standing on an environmental group like 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).
16
Sierra Club. But as explained above, 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 Natural
Resource Conservation Commission, 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.”31 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 determining when dismissal under Burford
is appropriate.”32
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 preliminary injunction record. We state no bar
31
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.
17
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.
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.33 In that case the plaintiffs, migrant farm workers,
were injured and received state worker compensation benefits.
They then sued under the federal Migrant and Seasonal
Agricultural Worker Protection Act.34 The Court held that the
state law providing that a worker who receives worker’s
compensation 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-emption principle
that would authorize States to withdraw federal remedies by
establishing state remedies as exclusive.”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
33
494 U.S. 638 (1990).
34
29 U.S.C. § 1801 et seq.
35
494 U.S. at 648.
18
“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 with Younger abstention,36 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 preemption”
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 Agencies shall cooperate with State and
Local Agencies to resolve water issues in concert with
conservation of endangered species.”37 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 proceeding 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
rulemaking for the granting of permits and critical period
36
See Younger v. Harris, 401 U.S. 37 (1971).
37
16 U.S.C. § 1531(c)(2).
19
management, 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 requirement is found with Younger
abstention, which applies “when federal court jurisdiction would
interfere with pending criminal, civil, or administrative state
proceedings,” and requires that “the pending state proceeding
must be ongoing and judicial in nature.”38
For these reasons, we conclude that the district court erred
in granting the preliminary injunction. The order granting the
injunction is VACATED.
38
Baran v. Port of Beaumont Navigation Dist., 57 F.3d 436,
441 (5th Cir. 1995).
20
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 inapplicable. 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.”
I.
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. § 1540(g)(1)(A). The
appellants acknowledge that the district 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).39 The
Supreme Court has long recognized that federal courts have a
“virtually unflagging” obligation to exercise the jurisdiction
conferred upon them by Congress. See, e.g., NOPSI, 491 U.S. at
39
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).
21
359. Although this duty is not absolute, abstention is “the
exception, not the rule.” Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 47
L.Ed.2d 186 (1984). Specifically, the Supreme Court has recently
emphasized that Burford abstention applies only in a “narrow
range of circumstances.” Quackenbush v. Allstate Insurance Co.,
— U.S. —, 116 S. Ct. 1712, 1725, 135 L.Ed.2d 1 (1996).
II.
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 exercise
jurisdiction it clearly possesses in favor of a state court’s
exercise of jurisdiction. Thus, when a federal court abstains in
a case in which a federal question is presented, 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
22
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 violated their right to due process of law
under the Constitution.40 Id. at 317. The Court ultimately
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 Burford, 319 U.S. at 332).
40
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 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).
23
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.” Burford, 319 U.S. at
334. Essential to this conclusion, moreover, 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 Fourteenth Amendment.”41 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 federal
constitutional claim, the Court noted that the plaintiff “ha[d]
41
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.
24
not shown that the Alabama procedure for review of Commission
orders [was] in any way inadequate 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 Natural 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 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 and Alabama Public Service Commission provided
adequate judicial review of the orders of the state commissions,
25
that was only because the plaintiffs were challenging orders of
the commissions, who were defendants in those cases. Adequate
review of the commissions’ orders in those cases was a necessary,
albeit insufficient, justification for applying Burford
abstention. Indeed, the Court relied on the fact that there was
“adequate 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 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.
26
III.
Neither the majority nor the appellants seriously dispute
the Sierra Club’s contention that it cannot bring an Endangered
Species Act claim within the auspices of the Edwards Aquifer
Act.42 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 Burford 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 federal claim within that scheme, however, deference
to state courts does not further the policies justifying Burford
abstention.43
To find authority for the proposition that “adequate state-
court review” must occur within the state administrative scheme,
one need look no further than Burford itself. There, the Court
42
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).
43
See McNeese v. Board of Educ. Community Unit Sch. Dist.
187, 373 U.S. 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”).
27
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 provided 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 Railroad
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 [State] Supreme Court feared might
result from review by many state courts of the Railroad
Commission’s orders has resulted from the exercise of
federal equity jurisdiction.
319 U.S. at 327 (internal quotations and citations omitted). 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 (Rehnquist, 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 cannot be
raised within the scheme that Texas has established to regulate
28
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. Burford, 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 by Congress because
doing so would potentially conflict with important local
interests.44 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
44
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 “[i]n 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.
29
Conservation Dist., 424 U.S. at 815-16). More important, the
appellants’ contention is flatly inconsistent with a governmental
system 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 inapplicable and would reach the
arguments raised by the appellants with respect to the
extraordinary and extensive order appealed from herein. For the
foregoing reasons, I respectfully dissent.
30