IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50918
Summary Calendar
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SIERRA CLUB,
Plaintiff-Appellee
VERSUS
CITY OF SAN ANTONIO, et al.,
Defendants,
STATE OF TEXAS,
Intervenor-Defendant-
Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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June 9, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The State of Texas appeals a denial of its motion to intervene
filed pursuant to FED. R. CIV. P. 24. Concluding that the district
court erred, we reverse and direct the district court to grant the
state’s motion for intervention as of right.
I.
In June 1996, the Sierra Club filed the instant action under
the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., alleging
that certain individuals and entities that currently pump or
otherwise withdraw water from the Edwards Aquifer were causing harm
to and “taking” threatened and endangered species living at Comal
and San Marcos Springs. According to the Sierra Club, for several
years the annual recharge of the aquifer has trailed its annual
discharge, causing the water level of the aquifer to fall and
thereby reducing the flow of water to the Comal and San Marcos
Springs, into which the aquifer discharges. The springs provide a
home to four “endangered species”SSthe fountain darter, the San
Marcos gambusia, the Texas blind salamander, and Texas wild-
riceSSand one “threatened” speciesSSthe San Marcos salamanderSSeach
of which, the Sierra Club contends, is jeopardized by the disrup-
tions to the fragile ecosystem allegedly caused by human mining.
Although the Texas Legislature enacted the Edwards Aquifer Act
to create a regulatory scheme to manage withdrawals from the
aquifer and “to sustain the diverse economic and social interests
dependent on the aquifer water,” Barshop v. Medina County Under-
ground Water Conservation Dist., 925 S.W.2d 618, 624 (Tex. 1996),
the Sierra Club has maintained four legal actions of which we are
aware pertaining to the subject matter of the aquifer. See Sierra
Club v. City of San Antonio, No. 96-50636, 1997 WL 211798, at *1-*3
(5th Cir. Apr. 30, 1997) (“Sierra Club I”) (reversing the grant of
a preliminary injunction in favor of the Sierra Club and discussing
in more detail the history of the Sierra Club’s litigation in
relation to the Edwards Aquifer). In the instant action, the
2
Sierra Club seeks to enjoin various parties who pump water from the
aquiferSSincluding the City of San Antonio, to which the aquifer
supplies water to more than one million of its residents, and seven
political subdivisions of the State of Texas who own water
utilities in Central TexasSSfrom reducing the springflows below
certain levels that the Sierra Club deems harmful to the spring
dwellers.
The State of Texas sought intervention in various capacities:
(1) qua the State of Texas; (2) on behalf of three of its agencies
that regulate state water and wildlife rights (the Texas Natural
Resources Conservation Commission (“TNRCC”), the Texas Parks and
Wildlife Department (“TPWD”), and the Texas Department of Agricul-
ture (“TDA”)); (3) on behalf of its citizens (parens patriae); and
(4) on behalf of the Texas Department of Criminal Justice (“TDCJ”),
an Edwards Aquifer pumper. The district court granted the state’s
motion to intervene in its capacity as pumper (on behalf of the
TDCJ) but denied it permission to intervene in its other capaci-
ties.
II.
Before reaching the merits of the intervention, we must
determine whether we have jurisdiction to entertain the appeal. In
general, a district court order is appealable under 28 U.S.C.
§ 1291 if it “ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” Catlin v. United
States, 324 U.S. 229, 233 (1945). Certain collateral orders are
3
reviewable immediately under § 1291 where they (1) determine
conclusively the disputed issue; (2) resolve an issue that is
separable completely from the merits of the action; (3) effectively
would be unreviewable on appeal from a final judgment; and (4) are
too important to be denied review. See Quackenbush v. Allstate
Ins. Co., 116 S. Ct. 1712, 1718-19 (1996) (citing Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949)).
We have recognized previously that an order denying interven-
tion of right under rule 24(a) is appealable as a collateral order.
See Edwards v. Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc)
(citing Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 n.5 (5th Cir.
1992)). The Sierra Club contends, however, that pursuant to
Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987),
because the decision to permit Texas to intervene in its capacity
as pumper only is not “effectively unreviewable on appeal from a
final judgment,” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978), it is not immediately appealable as a collateral order. We
disagree.
In Stringfellow, the district court denied the petitioner’s
motion to intervene as of right but granted its application for
permissive intervention with the following conditions: (1) the
petitioner could not assert any claims for relief that had not
already been requested by one of the original parties; (2) it could
not intervene in the State of California’s claim for recovery of
clean-up costs; and (3) it could not file any motions or conduct
its own discovery without first conferring with one of the original
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parties and obtaining its permission so to proceed. See
Stringfellow, 470 U.S. at 373. In all other respects, however, the
petitioner had full participation rights in the trial: It could
attend all depositions, participate in all hearings to the extent
not duplicative of other parties, and receive copies of all
discovery materials produced. See id. Concluding that it lacked
jurisdiction to entertain the petitioner’s appeal of these
limitations under the collateral order doctrine, the Court noted
that “CNA will have the same rights of appeal from a final judgment
as all other parties; we decline to extend the collateral order
doctrine to provide more.” Id. at 377.
In the instant case, the State of Texas, as represented by its
attorney general, sought to intervene in various different
capacities but was allowed to do so only in its capacity as pumper.
Under Texas law, the Attorney General enjoys an exclusive right to
represent state agencies; other attorneys who may be permitted to
assist the Attorney General are subordinate to his authority. See
Hill v. Texas Water Quality Bd., 568 S.W.2d 738, 741 (Tex.
App.SSAustin 1978, writ ref’d n.r.e.). That the Attorney General
serves as the common legal representative of each of the various
state agencies (and of the state qua state and as parens patriae)
does not fuse the varied interests of each of the diverse parts
into the whole. In fact, as this action evinces, the constituent
parts have different, and at time divergent, goals and interests.1
1
See, e.g., TEX. WATER CODE ANN. § 5.013 (Vernon 1995) (charging the TNRCC with
regulating Texas surface water rights and quality); TEX. PARKS & WILD. CODE ANN.
(continued...)
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The district court did not, as did the Stringfellow court,
place limitations on a single party’s rights to participate in a
legal proceeding, but rather denied completely the rights of
various different parties to participate in the instant litigation.
Under the court’s order, other than the TDCJ, none of the other
State constituencies will be able to attend depositions,
participate in any court hearings, receive copies of court
documents or discovery materials, or otherwise exercise
participatory rights in the litigation. The denial of intervention
is therefore a collateral order that is immediately appealable.
See 6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 24.24[1], at 24-85
(3d ed. 1997).
III.
To intervene as of right pursuant to FED. R. CIV. P. 24(a)(2),
the petitioner must meet the following requirements: (1) The
intervention application must be timely; (2) the applicant must
have an interest relating to the property that is the subject of
the action; (3) the applicant must be so situated that the
disposition may, as a practical matter, impair or impede his
ability to protect that interest; and (4) the applicant’s interest
(...continued)
§ 12.0011 (Vernon 1995) (charging the TPWD with protecting the State’s fish and
wildlife resources); TEX. AGRIC. CODE ANN. § 12.002 (Vernon 1995) (charging the TDA
with encouraging the proper development of agriculture, horticulture, and related
industries); Alfred L. Snapp & Son, Inc., v. Puerto Rico, 458 U.S. 592, 599-601
(1982) (recognizing the right of a state to represent its citizens as parens
patriae); Sierra Club v. Glickman, 82 F.3d 106, 110 (5th Cir. 1996) (recognizing
Texas’s right to represent the state qua state in protecting its sovereign rights
under the Edwards Aquifer Act).
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must be inadequately represented by the existing parties. See
Glickman, 82 F.3d at 108. We review for abuse of discretion the
finding of timeliness and the other requirements de novo. See
Sierra Club v. Espy, 18 F.3d 1202, 1205 & n.2 (5th Cir. 1994).
Because the Sierra Club has not contested on appeal the
timeliness of the state’s application nor whether the disposition
may impair the state’s ability to protect its interests in the
subject matter, we deem requirements (1) and (3) satisfied. See
Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9
(5th Cir. 1995) (holding that “failure to provide any legal or
factual analysis of an issue results in waiver”). The Sierra Club
does, however, contend that the state (in its various capacities)
does not have an interest in the subject matter of the litigation
and that whatever interests it may have are represented adequately
by other existing parties. We cannot agree.
With respect to the interests of the state (in its various
capacities) in the subject matter of the litigation, we find that
they are several and important: (1) The state qua state has an
important sovereign interest in protecting the self-governing
authority of the Edwards Aquifer Act and in seeing that the scheme
passed by the legislature is properly enforced, see Glickman,
82 F.3d at 110; (2) the state as legal representative of the TNRCC
has an interest in the regulation of various water rights of the
pumpers of the aquifer, see TEX. WATER CODE ANN. § 5.013; (3) the
state as legal representative of the TPWD has an interest in the
protection of the state’s fish and wildlife resources, see TEX.
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PARKS & WILD. CODE ANN. § 12.0011; (4) the state as legal
representative of the TDA has an interest in maintaining and
regulating agricultural interests affected by the aquifer,
including the financial assistance programs that support some of
the pumper farmers, see TEX. AGRIC. CODE ANN. § 12.002; Glickman, 82
F.3d at 110; and (5) the state as parens patriae has an interest in
the physical and economic health and well-being of the citizens
directly affected by changes in the water level draw-downs at the
aquifer. See Alfred L. Snapp, 458 U.S. at 607. Although we do not
dispute the Sierra Club’s contention that this case is about the
alleged excess water pumping of the various “customers” of the
aquifer only, we are at a loss to understand its insistence that
these above-named constituencies do not have a direct, cognizable
legal interest in the subject matter of the litigation.
We similarly reject the Sierra Club’s argument that the
state’s various interests are represented adequately by the
existing parties. It is axiomatic that the interests of the
pumpers, who are local cities, businesses, and governmental
entities that rely on the aquifer’s water supply for their
immediate subsistence, will diverge from those of the various state
agencies who are charged with taking a state-wide view of the
aquifer as its affects wildlife, water resources and quality, and
the agricultural industry, as well as those of the state qua state
and as parens patriae. Plainly, the pumpers will not represent
adequately the interests of these state constituencies and, under
Texas law, may not do so. See Hill, 568 S.W.2d at 741.
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Because we find that the state has met the requirements of
rule 24(a)(2), we REVERSE the partial denial of intervention and
REMAND with direction to the district court to grant the state's
motion for intervention as of right.
9