JANIS GRAHAM JACK, Senior District Judge.
Pending before the Court are Plaintiff The Aransas Project's Motion for Partial Summary Judgment on Standing, (D.E. 213), State Official Defendants' Motion for Summary Judgment, (D.E. 214), and Defendant-Intervenor Guadalupe-Blanco River Authority's Motion for Summary Judgment,
The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 16 U.S.C. §§ 1540(c) & (g) (the Endangered Species Act),
The Aransas Project (a non-profit corporation) ("Plaintiff" or "TAP") brought this action on March 10, 2010 pursuant to the Endangered Species Act, 16 U.S.C. §§ 1540(c) & (g), against several Texas Commission on Environmental Quality ("TCEQ") officials (Bryan Shaw, Buddy Garcia, Carlos Rubinstein, and Mark Vickery) and the South Texas Watermaster (Al Segovia) (collectively "Defendants"). In essence, Plaintiff alleges that Defendants' failure to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter resulted in a "tak[ing]" of Whooping Cranes, an endangered species, in violation of Section 9 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538(a)(1)(B). Plaintiff argues that the reduced flow of fresh water into the ecosystem increased salinity, reducing the food and water supply for the Whooping Cranes, thus weakening and ultimately resulting in the death of twenty-three Whooping Cranes. (D.E. 1 at 2, 8-24.)
Plaintiff requests declaratory and injunctive relief to ensure that the Whooping Cranes have sufficient water resources to prevent future "takings." (D.E. 1 at 32-33.) In essence, Plaintiff seeks a declaration that Defendants' actions resulted in a "taking" of Whooping Cranes in violation of Section 9 of the ESA, an injunction impacting current and future water diversions that result in takings of Whooping Cranes, and a court order requiring Defendants to develop a process to ensure that Whooping Cranes are protected. (D.E. 1 at 32-33.)
On September 15, 2011 Plaintiff filed its Motion for Partial Summary Judgment on Standing. (D.E. 213.) Defendants TCEQ and GBRA also filed their respective Motions for Summary Judgment on September 15, 2011. (D.E. 214; D.E. 215.) Together, Defendants' and GBRA's motions raise four broad arguments: (1) Plaintiff lacks standing and there is no case or controversy between the parties, (D.E. 215 at 11-16; D.E. 231), (2) Eleventh Amendment immunity bars Plaintiff's claim, (D.E. 214 at 23-25), (3) Plaintiff has failed to establish a right to recovery under the ESA, (D.E. 214 at 5-21; D.E. 215 at 8-15), and (4) the Complaint should be dismissed under the Burford abstention doctrine. (D.E. 215 at 24-29.) The Court addresses each argument separately.
Plaintiff, TCEQ Defendants, and GBRA have all moved for summary judgment. Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir.1996). A dispute about a material fact is genuine
On summary judgment, "[t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law." Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir.2003); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, "the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case." Rivera, 349 F.3d at 247. The nonmovant's burden "is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir.1995); see also Brown v. Houston, 337 F.3d 539, 541 (5th Cir.2003) (stating that "improbable inferences and unsupported speculation are not sufficient to [avoid] summary judgment"). It is well established that "[t]he moving party need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the nonmoving party's case." Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.1991).
Summary judgment is not appropriate unless, viewing the evidence in the light most favorable to the non-moving party, no reasonable jury could return a verdict for that party. Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir.2000). In considering a motion for summary judgment, the court cannot make credibility determinations, weigh the evidence, or draw inferences for the movant. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court must draw all justifiable inferences from the summary-judgment evidence in the light most favorable to the nonmovant. Id.
Under Article III of the U.S. Constitution, the federal judicial power is restricted to "Cases" and "Controversies." U.S. Const. Art. III, § 2. Under Article III, "the irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These elements are "(1) an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury." Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir.2009) (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130). As "the party invoking federal jurisdiction," the plaintiff "bears the burden of establishing these elements." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The plaintiff must meet this burden "`with the manner and degree of evidence required at the successive stages of the litigation' ...." Id. In response to a motion for summary judgment on standing, a party may not rest on its allegations but must "`set forth' by affidavit or other evidence `specific facts' ... which for the purposes of the summary judgment motion will be taken as true." Id. (internal quotations and citations omitted).
In this case, GBRA and TCEQ Defendants dispute the three central elements of
GBRA argues that TAP has not met its continuing obligation to demonstrate an actual or imminent injury, and that TAP cannot merely rely on speculation that its members may someday be injured in their ability to see Whooping Cranes. (D.E. 215 at 12.) Further, while Plaintiff broadly asserts damages to its members' economic and personal interests, Plaintiff provides no specific facts showing how a "purported take has prevented its members' pursuit or otherwise injured their economic or other interests." (Id. at 13, n. 5.) Plaintiff does not allege, for example, that any of its members witnessed a taking of a Whooping Crane, or suffered a decline in business as a result of a take. (Id.)
GBRA further contends that TAP's alleged injury is "belied by the fact that estimated crane counts ... suggest that the whooping crane population is currently at an all-time record high." (Id.) Finally, GBRA contends that there is no evidence before the Court establishing a future take of cranes, and that the cases Plaintiff cites to show such future takes are inapposite from the case at bar. (D.E. 229 at 14.) GBRA therefore concludes that Plaintiff fails to meet its summary-judgment burden with respect to the injury-in-fact element of standing. (Id. at 9.)
For its part, Plaintiff argues that the injury requirement may be satisfied by a demonstration of harm to its members' environmental, recreational, aesthetic or economic interests. (D.E. 213 at 11.) Plaintiff then notes the deposition testimony of several of its members indicating that they have such interests in the Cranes. (Id. at 12-13.) These interests, TAP contends, give its members a `personal stake' in the vitality and long-term survival of the Cranes. (Id. at 13.) Plaintiff argues that fewer birds will affect visual observation, recreational enjoyment and tourism, thus Plaintiff has met its summary-judgment burden with respect to its members' injury-in-fact. (Id. at 14.)
In Lujan, the Supreme Court stated that "when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily `substantially more difficult' to establish." 504 U.S. at 562, 112 S.Ct. 2130. The Court recognized that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing. But the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Id. at 562-63, 112 S.Ct. 2130. Later, in Friends of the Earth, Inc., the Court stated that "environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons `for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
In the context of this case, Plaintiff's evidence sufficiently demonstrates injury in fact to its members. TAP states that many of its members "are active birders and devote substantial time and effort to observing the Whooping Crane and other birds in their natural habitat," and that TAP members "reside and work in the Aransas area, and for some their livelihood depends in large part upon the Cranes." (D.E. 1 at 28-29.) Plaintiff further states,
GBRA contends that, because Plaintiff's members have not yet experienced any impairment to their interests, Plaintiff cannot establish injury in fact. This contention is without merit. The Fifth Circuit has stated "that an injury is couched in terms of future impairment rather than past impairment is of no moment. The Supreme Court has expressly held that a `threatened injury' will satisfy the injury in fact requirement for standing." Sierra Club, Lone Star Chapter v. Cedar Point Oil, 73 F.3d 546, 556 (5th Cir.1996) (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). Here, Plaintiff's evidence indicates that if future water diversions are allowed, more Whooping Cranes may well be taken, threatening injury to the recreational, economic and aesthetic interests of TAP's members.
In addition, GBRA's suggestion that, in order to establish injury in fact, TAP members must have actually observed a crane mortality, is incorrect. As the Supreme Court noted in Lujan, "[i]t is clear that the person who observes ... a particular animal threatened by [the challenged action] is facing a perceptible harm
With respect to the element of redressability, GBRA argues that Plaintiff fails to explain how altering the issuance of new or existing water permits will noticeably affect or remedy a specific injury that Plaintiff is allegedly suffering, and has failed to allege that Defendants could even take such action to alter permits or rights. (D.E. 215 at 15-16.) TCEQ officials have the authority to issue water permits but do not have the authority to alter those permits after they are issued. (Id.) GBRA argues that, because Texas law does not allow TCEQ officials to alter existing water permits, Plaintiff has not sufficiently demonstrated that a favorable decision
Conversely, Plaintiff argues that redressability exists for both declaratory and injunctive relief. With respect to declaratory relief, Plaintiff argues that the requested relief would establish TCEQ Defendants' violation of the ESA, and would determine certain non-discretionary duties for the TCEQ Defendants not to harm the Cranes. (D.E. 213 at 21-22.) With respect to injunctive relief, Plaintiff points to the process for development of a Habitat Conservation Plan ("HCP") that, if sufficient, may lead to the issuance of an Incidental Take Permit ("ITP"). This is one manner, according the Plaintiff, in which the TCEQ Defendants may protect the Cranes within the current regulatory framework. (Id. at 18-21.) Further, Plaintiff states that the list of equitable remedies in its Complaint is neither mandatory nor exhaustive, but rather a "range of options," all meant to ensure that the Defendants take the Cranes' need for fresh water into account. (Id.)
The Court finds that the redressability element of standing is satisfied. To establish redressability, it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693. The Supreme Court has also explained that the relevant question is simply "whether a plaintiff personally would benefit in a tangible way from the court's intervention." Citizens for a Better Env't, 523 U.S. at 103 n. 5, 118 S.Ct. 1003 (internal quotation marks omitted). "When ... a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else ... causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well." Lujan, 504 U.S. at 562, 112 S.Ct. 2130.
With respect to declaratory judgments, the Supreme Court has stated, "the question... is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests, or sufficient immediacy and reality to warrant the issuance of a declaratory judgment." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). Plaintiff seeks a declaration that Defendants have violated ESA Section 9 in the past and are presently violating Section 9 by issuing water permits and authorizing diversions, as well as a declaration that water diversion regulations are preempted by federal law when they purport to allow activities that result in the taking of Whooping Cranes. (D.E. 1, Prayer ¶ A, B, C.) Even though the declaration would not, on its own, result in the issuance of new regulations or any particular change to Defendants' activities, it would likely aid in Plaintiff's overall goal of developing a process for the protection of the Whooping Cranes. A finding that Defendants have violated the ESA will make it more likely that they will work to develop a process for protecting the Cranes. At oral argument, Plaintiff confirmed that a declaratory judgment as to violation of ESA Section 9 would significantly redress its injury. (July 28, 2010, Hearing at 2:29:08 (Mr. Blackburn: "I think that a declaratory judgment from this Court that the Endangered Species Act had been violated would also be an incentive to find a solution. We are willing to work with the State to come up and craft a solution.")).
As for Plaintiff's request for injunctive relief, (D.E. 1, Prayer ¶ D, E) the Court rejects Defendants' argument that they are essentially powerless to regulate water
Finally, as to Plaintiff's other requested relief for the development of a process or plan to prevent future takes of Whooping Cranes, specifically the development of an HCP and the issuance of an Incidental Take Permit under 16 U.S.C. § 1539(a)(2), this too would redress Plaintiff's injury. The Supreme Court has rejected overly "draconian interpretation[s] of the redressability requirement." Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). A plaintiff "satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury." Id. The mere fact that Plaintiff may not prevail on every request for relief by no means precludes a finding that its injury may be redressed in some manner by a favorable decision. Plaintiff has sufficiently demonstrated redressability.
Plaintiff argues that it has satisfied the element of causation, in that it has connected the Crane's "taking" to low flow conditions, and these low flow conditions to the TCEQ Defendants' water-management practices. (D.E. 213 at 16-17.) GBRA offers essentially two arguments in response. First, Plaintiff's theory of causation is based on a lengthy "chain of conjecture" that other courts have rejected. (D.E. 215 at 14.) Plaintiff fails to demonstrate that the acts of Defendants, rather than acts of third parties, are responsible for Plaintiff's injury. Second, GBRA asserts that TAP fails to offer evidence that links the low flow conditions with an increase in crane mortality.
With respect to GBRA's first argument, Plaintiff contends that, where a government regulator has been sued, courts have found a causal connection between the governmental activity at issue and the resulting take, even if third parties were the immediate cause of the taking. (D.E. 227 at 19.) In addition, Plaintiff argues that the causation standard for standing is different from the causation standard for purposes of liability, in that an indirect causal relationship will suffice, so long as there is a "fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant." (D.E. 213 at 15.) Because the water permit holders only take water pursuant to the TCEQ Defendant's permission, Plaintiff
The Court concludes that the first aspect of causation in this case, specifically, the relationship between Defendants' conduct and the low water flow conditions, is satisfied. While a causal link may become "too attenuated" if an injury is "the result of the independent action of some third party not before the court," Lujan, 504 U.S. at 560, 112 S.Ct. 2130, this is not the case here. The TCEQ is directly responsible for issuing water permits, as its own website plainly states. According to the website, "[t]he state may authorize the use of state water through a permitting system administered by the TCEQ .... Each application for a permit is reviewed for administrative and technical requirements to evaluate its impact on other water rights, bays and estuaries, conservation, water availability, public welfare, etc." See About Water Availability and Water Rights Permitting in Texas, http://www. tceq.state.tx.us/permitting/water_supply/ water_rights/permits.html (last visited November, 4, 2011). The website also includes a list of pending water-rights applications, totaling over 210 applications at the moment. Pending Water Rights Apps., http://www.tceq.state.tx.us/ permitting/water_supply/water_rights/ pending.html (last visited November 4, 2011). The Texas Administrative Code contains procedures governing the issuance of water permits by the TCEQ, and provides numerous prerequisites for the issuance of such permits. 30 Tex. Admin. Code § 297.41 et seq.
Essentially, Plaintiff alleges that the TCEQ Defendants did not properly consider the impact water permits would have upon the Whooping Crane population, particularly during drought periods, thus causing a "taking" of the Cranes in violation of ESA Section 9. This establishes causation. The question of whether Defendants have any power to modify permits relates more to redressability than causation, and was addressed above.
Plaintiff's decision to sue the state regulators responsible for water usage rather than the water users themselves does not prevent a finding of causation. As one court recently explained, "the plaintiff must show that it is substantially probable that the challenged acts of the defendant, not of some absent third party, will cause the particularized injury of the plaintiff. The more attenuated or indirect the chain of causation between the government's conduct and the plaintiff's injury, the less likely the plaintiff will be able to establish a causal link sufficient for standing." Ctr. for Biological Diversity v. United States Dept. of Interior, 563 F.3d 466, 478 (D.C.Cir.2009) (internal quotation marks and citations omitted).
As the Supreme Court has explained, it is incorrect to "equate[] injury `fairly traceable' to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation. While, as we have said, it does not suffice if the injury complained of is the result of the independent action of some third party not before the court, that does not exclude injury produced by determinative or coercive effect upon the action of someone else." Bennett v. Spear, 520 U.S. 154, 168-69, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks omitted). Consistent with this understanding, causation has been found to be too attenuated where governmental regulation is but one step in a very long chain of independent actions. For example, in Center for Biological Diversity, the court explained:
563 F.3d at 478-79. Similarly, in Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 669-70 (D.C.Cir.1996), the court found causation between a tax credit and environmental damage too attenuated, stating:
94 F.3d at 669-70.
In contrast, causation has been found where there has been a direct relationship between the challenged government regulation and the resulting "taking" of an endangered species, even where the actions of the regulated parties actually caused the taking. For example, in Loggerhead Turtle v. County Council of Volusia County, Florida, plaintiffs sued Volusia County, alleging inter alia that its refusal to ban beachfront artificial light sources adversely impacted the loggerhead turtle, resulting in a taking in violation of ESA Section 9. 148 F.3d 1231, 1234-35 (11th Cir.1998). The Eleventh Circuit found that the plaintiffs had standing, and had sufficiently alleged causation based upon
Strahan v. Coxe, 939 F.Supp. 963, 978-79 (D.Mass.1996);
In the instant case, Plaintiff's claims as to causation are much closer to those accepted in Loggerhead Turtle, Strahan, and Sutherland than those rejected in Center for Biological Diversity and Florida Audubon Society. Plaintiff has alleged that the TCEQ Defendants are responsible for water permitting and water diversions from the waterways at issue, and the increased diversions have left less water for the Cranes, resulting in a taking. This type of causation is sufficient for an ESA suit challenging governmental regulation. Indeed, under Defendants' and GBRA's theory of causation, an ESA lawsuit against a governmental regulation probably could never succeed, as government regulation on its own would almost never directly cause a taking (unless it involved government operations on government owned land). In most instances, governmental regulations can result in a taking only indirectly, through the actions of those subject to regulation, as Plaintiff alleges here. The Court concludes that
With respect to the second aspect of causation in this case, namely, the connection between low flow conditions and crane mortality, the Court concludes that several issues of material fact remain. The Supreme Court has instructed that, at the summary judgment stage, a plaintiff's standing evidence is to be taken as true. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Plaintiff, in its Complaint, provides a detailed explanation of the causal link between low flow conditions and crane mortality. (D.E. 1 at 8-13). Specifically, Plaintiff argues that reduced water flows lead to high bay salinity, which in turn leads to a reduction in the availability of blue crabs, wolfberries and fresh drinking water. The reduced availability of the Cranes' primary food sources, coupled with the expenditure of energy made necessary by having to fly farther to freshwater sources, leads to malnourishment and ultimately the death of Whooping Cranes. Plaintiff provides evidence for each causal link which, if taken as true, could establish Plaintiff's claim.
Alternatively, GBRA argues that Plaintiff's evidence is problematic in several respects. Specifically, TAP has not demonstrated that 23 cranes actually died in the winter of 2008-2009. Even if it had, it is argued, the statistical evidence provided by Plaintiff's experts linking low freshwater inflows with crane mortality shows only a correlation between the two variables, not a causal link.
GBRA also contends that Plaintiff has not demonstrated that water diversions during the winter of 2008-2009 were markedly different from any other year, and that Plaintiff ignores other conditions more likely than salinity levels to affect the blue crab population. Moreover, GBRA argues that TAP's evidence does not indicate that a decrease in blue crabs and wolfberries creates food stress for whooping cranes, or that heightened salinity levels force them to expend significant energy locating fresh water to drink.
In the instant case, the evidence presented by Plaintiff, taken as true, establishes a causal link between Defendants' conduct and Plaintiff's injury, enabling Plaintiff to survive GBRA's and Defendants' motions for summary judgment. However, the assumption of truth mandated by the Court in Lujan does not go as far as Plaintiff might wish. Given that GBRA has presented competent counterevidence to several links in Plaintiff's alleged causal chain, a grant of partial summary judgment in favor of Plaintiff is, at this point, unwarranted.
GBRA contends that, because TAP has not established that any of its members have standing, or that TAP has standing independently of its members, TAP lacks standing to bring suit on behalf of its members. (D.E. 229 at 30-31.) Plaintiff argues that it has standing because its individual members have standing. (D.E. 227 at 21.)
"An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693. As discussed above, Plaintiff has satisfied the standing elements of injury in fact and redressability. If it subsequently establishes that injury to its members is fairly traceable to the actions of Defendants, Plaintiff will have established
While Plaintiff has established injury in fact and redressability, per analysis supra, the Court concludes that issues of material fact remain as to whether low flow conditions caused a take of Whooping Cranes. Further, because TAP has not established that its members have standing, it cannot yet meet the requirements for associational standing. Accordingly, Plaintiff's Motion for Partial Summary Judgment on Standing (D.E. 213) is DENIED. Similarly, GBRA and Defendants have not met their burden in showing that there are no genuine issues of fact as to Plaintiff's standing. Consequently, their requests for summary judgment as to this issue are DENIED. (D.E. 215; D.E. 231.)
The TCEQ Defendants argue that Eleventh Amendment immunity bars Plaintiff's claim. They argue that they lack the authority to cut off or proportionally reduce the entitlements of water-rights holders for reasons outside of the Texas Water Code's time priority system. Because permit holders as well as domestic and livestock users have rights, and Plaintiff seeks relief that would interfere with those rights, Defendants argue that Plaintiff in fact seeks retroactive relief, which is not allowed under the doctrine established in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). (D.E. 214 at 24.) Plaintiff responds that it seeks only prospective declaratory and injunctive relief, not damages, against state officers. (D.E. 227 at 51-52.) As such, the Eleventh Amendment does not bar the suit, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). (Id. at 52.)
"In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a `straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (citing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). As the Fifth Circuit has explained, "[p]ursuant to the Ex parte Young exception, the Eleventh Amendment is not a bar to suits for prospective relief against a state employee acting in his official capacity.
The requirement that Plaintiff allege an ongoing violation of federal law is also
Defendants' Eleventh Amendment immunity argument therefore fails. Consequently, Defendants' request for summary judgment on this ground is DENIED.
The TCEQ Defendants contend that, as a matter of law, Plaintiffs are not entitled to recovery under ESA Section 9 because "[i]mputing liability to regulatory agencies for merely carrying out their regulatory duties runs contrary to [the] ESA ...." (D.E. 214 at 19.) Noting that Plaintiff relies largely upon the First Circuit's decision in Strahan v. Coxe, 127 F.3d 155 (1st Cir.1997), Defendants argue that the holding in that case is incorrect, and attempt to demonstrate that the facts of the instant case are distinguishable. (Id. at 6.) As discussed further below, the First Circuit in Strahan held "that a governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA." 127 F.3d at 163.
According to Defendants, the Strahan decision is flawed because the plain language and structure of the ESA demonstrate that it was not intended to be applicable to state regulators. (Id. at 19-21.) Defendants also attempt to distinguish between the facts of this case and those of Strahan. One key difference, Defendants argue, is that the TCEQ has almost no authority to modify or revoke water permits because such permits reflect property rights that are constitutionally protected under Texas law. (Id. at 10.) Further, TCEQ's regulatory powers are limited to those enumerated in the Texas Water Code and do not include many of the powers Plaintiff ascribes to it, such as the power to divert available water in order to reserve that water for the bay and estuary. (See id. at 6.) Finally, Defendants contend that this lack of authority demonstrates that they cannot have been the proximate cause of any purported take of Whooping Cranes. (Id. at 21-23.)
For its part, GBRA argues that Plaintiff's allegations, even if true, do not establish a take as a matter of law. Despite broad allegations regarding deaths of Cranes, Plaintiff has not demonstrated "that a particular whooping crane has been harassed, harmed, pursued, hunted, shot, wounded, killed, trapped, captured or collected." (D.E. 215 at 16.) It also argues that the term "harassment" is irrelevant on the facts of the instant case because the term involves annoyance of wildlife, and no facts describing annoyance have been alleged. (Id. at n. 9.)
Moreover, even if Plaintiff did allege facts specifying the taking of a Whooping Crane, it has not alleged facts demonstrating that the taking was proximately caused by Defendants. (Id. at 17-20.) Finally, GBRA contends that the relief sought by Plaintiff is outside the scope of the ESA's citizen-suit provision. (Id. at 20-23.) TAP does not merely seek to enjoin Defendants' conduct, it seeks to commandeer state water resources and change the water law of the state.
In response to the arguments of the TCEQ Defendants and GBRA, Plaintiff contends that the TCEQ Defendants possess both express and implied authority by which they can act to avoid a take. (D.E. 227 at 21.) In addition, though permit holders have rights in water, ultimately, water is the property of the State. (Id. at 25.) Even assuming that TCEQ did not have any authority under state law, Plaintiff argues, a state cannot legitimately authorize a state agency to violate federal law in contradiction of the Supremacy Clause. (Id. at 26.)
TAP further contends that the language of the ESA and relevant case law indicate that regulators can be held liable for takings under the ESA. (Id. at 28-31.) Moreover, Plaintiff argues that regulators can in fact be the proximate cause of a take under the ESA and that the evidence it has provided demonstrates such causation. Finally, Plaintiff contends that the relief it seeks is within the scope of the ESA's citizen-suit provision.
As detailed above, Defendants' and GBRA's arguments for summary judgment fall into three broad categories: (1) ESA Section 9 does not allow actions against regulators for "takings," (2) the relief Plaintiff requests is outside the scope of the ESA's citizen-suit provision, and (3) Plaintiff has not presented evidence of a take under the ESA that enables it to survive a motion for summary judgment. The Court addresses each argument separately.
As an initial matter, the Court rejects Defendants' argument that ESA Section 9 does not extend to suits brought against regulators whose actions indirectly result in a taking of an endangered species. Defendants' interpretation belies both the purposes of the ESA itself and consistent legal precedent.
The ESA itself is broadly worded and contains no explicit or implicit indication that it was not intended to apply to regulators. The purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section." 16 U.S.C. § 1531(b). In a manner consistent with this purpose, the Senate Report on the ESA states that the term "take" is defined "in the
The Supreme Court has likewise recognized that Congress intended, with passage of the ESA, to "provide comprehensive protection for endangered and threatened species." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). The ESA even makes specific reference to water resource issues, stating that it is "the policy of Congress that Federal agencies shall cooperate with State and local agencies to
This broad interpretation of the ESA has been adopted by courts around the nation. All parties agree that there is no directly applicable case law in this Circuit. Nevertheless, the weight of persuasive authority strongly supports the conclusion that ESA Section 9 extends to lawsuits against state or federal regulators for regulatory failures that result in a "taking," even if that taking is directly caused by the action of a regulated party.
As acknowledged above, the most directly relevant precedent is the First Circuit's decision in Strahan v. Coxe.
127 F.3d at 163 (emphasis added). The court further found that while the causation in that case was indirect, it was "not so removed that it extend[ed] outside the realm of causation as it is understood in the common law." Id. at 164. The Strahan court thus upheld a preliminary injunction against Massachusetts regulators. As would be expected, district courts within the First Circuit have since applied Strahan in similar contexts. Animal Welfare Inst. v. Martin, 588 F.Supp.2d 70, 99-100 (D.Me.2008); United States v. Town of Plymouth, 6 F.Supp.2d 81, 90 (D.Mass. 1998).
Although not directly on point, Strahan cites a Fifth Circuit case that also supports actions against regulatory agencies under the ESA. In Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991), the plaintiff brought suit against the U.S. Forest Service challenging its lumber harvesting management practices, which the plaintiff claimed resulted in a taking of the red-cockaded woodpecker, an endangered species. 926 F.2d at 431. The Forest Service had developed a handbook that was meant to modify lumber harvesting practices to account for endangered species, but had not acted in accordance with the handbook. The Fifth Circuit concluded that the lower court did not err in finding that the U.S. Forest Service's management practices violated Section 9 of the ESA. Id. at 439 ("[I]t is not unreasonable to conclude that failure to observe the handbook would result
At least two other circuits have issued rulings similar to Strahan. The Eighth Circuit in Defenders of Wildlife v. EPA found that the EPA could be held liable under ESA Section 9 for its registration (approval) of strychnine, a poison found in pesticides that harmed certain endangered species. 882 F.2d 1294, 1296-98 (8th Cir. 1989). In finding that the EPA's registrations of strychnine constituted takings of endangered species, the court explained
Defenders of Wildlife, 882 F.2d at 1301 (emphasis added).
The Eleventh Circuit in Loggerhead Turtle v. County Council found that plaintiffs had standing to sue Volusia County, Florida for a taking under the ESA because its night-time beachfront lighting regulations harmed the loggerhead turtle, an endangered species. 148 F.3d 1231 (11th Cir.1998). The court stated:
148 F.3d at 1253 (internal citations omitted).
As a final example, the district court in Sutherland concluded that state forestry officials could be held liable for a taking under the ESA due to regulations that harmed the spotted owl environment. 2007 WL 1300964, at *8. The court stated, "[t]he plain language of the ESA supports the proposition that a government official violates the ESA take prohibition when that official authorizes someone to exact a taking of an endangered species, which, but for the authorization, could not have taken place." Id. The court continued, "[c]ourts have repeatedly held government officers liable for violating the take prohibition when the officers authorized activities undertaken by others that caused take." Id. at *9 (citing Yeutter, 926 F.2d at 438-39).
Together, these cases support a broad interpretation of ESA Section 9, one that allows government regulators to be held
In this case, Plaintiff seeks (1) injunctive relief; (2) declaratory relief under the Declaratory Judgment Act; and (3) a court order requiring Defendants to take several affirmative steps to protect the Whooping Cranes and their habitat. The parties do not dispute that the ESA's citizen-suit provision allows for injunctive relief. See 16 U.S.C. 1540(g)(1)(A) ("Except as [otherwise provided] any person may commence a civil suit on his own behalf-
To the first argument, the Court merely notes that the Complaint specifically requests two forms of injunctive relief: (1) an injunction preventing Defendants from approving or allowing water diversions that destroy or alter the Whooping Crane habitat until the State provides reasonable assurances that such diversions will not take Whooping Cranes in violation of the ESA; and (2) an injunction preventing Defendants from approving new water permits absent assurances that future water diversions will not take Whooping Cranes. (D.E. 1 at 32-33.) The citizen-suit provision of the ESA clearly provides for such relief. See 16 U.S.C. § 1540(g)(1)(A).
Moreover, GBRA's argument that injunctive relief is all that is permitted by the ESA's citizen-suit provision is unpersuasive. Subsection 1540(g)(5) states:
16 U.S.C. § 1540(g)(5); see also Colorado River Cutthroat Trout v. Dirk Kempthorne, 448 F.Supp.2d 170, 178 (D.D.C. 2006). Thus, Plaintiff's right to seek declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, a federal statute, is not foreclosed by the injunctive relief provided by the ESA's citizen-suit provision.
Finally, the Court rejects GBRA's implication that the injunctive relief afforded by the ESA limits this Court's ability to place affirmative obligations on Defendants to ensure their compliance with federal law.
The respondents in Weinberger, the Governor of Puerto Rico and residents of the island, sought to enjoin the Navy's operations on the island, contending that such operations were violative of several environmental statutes. Id. at 307, 102 S.Ct. 1798. At that time, the Navy conducted practice exercises on the island, which would often result in spent munitions falling into the sea. Id. The district court concluded that the Navy had violated the Act by "discharging ordnance into the waters surrounding the island without first obtaining a permit from the Environmental Protection Agency (EPA)." Id. at 307-08, 102 S.Ct. 1798.
The district court ordered the Navy to apply for a permit, but refused to otherwise enjoin Navy operations pending the grant of the permit. Id. at 309, 102 S.Ct. 1798. On appeal, the First Circuit vacated the district court's order and instructed the district court to order the Navy to cease the violation until a permit was obtained. Id. at 310, 102 S.Ct. 1798. The appellate court reasoned that, in providing for injunctive relief, the Act withdrew the courts' equitable jurisdiction. Id. at 306-07, 102 S.Ct. 1798. The Supreme Court reversed. Id. at 307, 102 S.Ct. 1798.
The Court noted that statutes providing for particular grants of jurisdiction should be read against the backdrop of the courts' general ability to provide equitable relief. Id. at 313, 102 S.Ct. 1798. Statues should be read in this manner because the exercise of equitable relief reflects a "practice with several hundred years of history," that is one of which Congress is well aware. See id. Further, while Congress may guide or control the exercise of the courts' discretion, the Court does not "lightly assume that Congress has intended to depart from established principles." Id. (citations omitted). The Court then cited to a prior holding explaining the nature of the courts' equitable jurisdiction:
Id. at 313, 102 S.Ct. 1798 (internal citations omitted).
There is no "clear and valid legislative command" in the ESA's citizen-suit provision that would cause this Court to refrain from exercising its equitable jurisdiction. To the contrary, the Court's authority to enforce the provisions of the ESA is broad. Thus, if Defendants are found to have violated the provisions of the ESA, the Court can impose affirmative obligations upon Defendants to ensure their compliance with federal law. See Strahan, 127 F.3d 155, 170 (affirming district court's order to state-official defendants to apply for an incidental take permit and noting that "[t]he ESA does not limit the injunctive power available in a citizen suit, and thus, we understand the Act to grant a district court the full scope of its traditional
Having established that ESA Section 9 allows for a cause of action against the TCEQ Defendants, and that the relief sought by Plaintiff is within the scope of the ESA, the Court now turns to GBRA's argument that it is entitled to summary judgment because Plaintiff fails to present evidence establishing a "taking" under Section 9.
In this case, the Court concludes that Plaintiff provides enough evidence of a "taking" of Whooping Cranes, both in terms of deaths and non-fatal harm, such as malnourishment, to survive a motion for summary judgment.
Second, the Court concludes that there are genuine issues of fact as to Defendants' actions being the proximate cause of a "take" of Whooping Cranes. (D.E. 1 at 20-23; D.E. 1-1 at 11-13; see supra Part III.B.2.c.) The Court therefore finds that Plaintiff has presented enough factual material to survive summary judgment on the issue of Defendants' liability under the ESA. For these reasons, both Defendants' and GBRA's motions for summary judgment are DENIED as to Plaintiff's claims under the ESA.
GBRA argues that this Court should abstain from adjudicating this case on the basis of Burford abstention. (D.E. 215 at 24-29.) In Burford v. Sun Oil Co., the Supreme Court affirmed a district court decision dismissing an action in which the Sun Oil Company challenged a Texas Railroad Commission order granting Burford a permit to drill certain oil wells. 319 U.S. 315, 316-17, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). "The order under consideration [was] part of the general regulatory system devised for the conservation of oil and gas in Texas, an aspect of as thorny a problem as has challenged the ingenuity and wisdom of legislatures." Id. at 318, 63 S.Ct. 1098. Recognizing the significant state regulatory framework, the Court concluded that federal court abstention was proper. The Court reasoned:
Burford, 319 U.S. at 333-34, 63 S.Ct. 1098. The Fifth Circuit has recently explained, "Burford abstention applies when a case involves a complex issue of unsettled state law that is better resolved through a state's regulatory scheme." Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 272 (5th Cir.2009) (citing Burford, 319 U.S. at 332, 63 S.Ct. 1098). As part of its Burford abstention analysis, a court should consider five factors:
Moore, 556 F.3d at 272 (citing Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir.1993)).
Intervenor GBRA argues that Burford abstention is applicable here, where Plaintiff's requested relief "would affect all new and existing water rights within the San Antonio and Guadalupe River Basins and would require the State entities to engage in far reaching and burdensome undertakings...." (D.E. 215 at 24.) In arguing for abstention, GBRA relies heavily upon the Fifth Circuit's decision in Sierra Club v. City of San Antonio, 112 F.3d 789 (5th Cir.1997). Sierra Club was an ESA case involving water withdrawals from the Edwards Aquifer that resulted in a taking of certain endangered species, in which the Fifth Circuit held that the lower court erred by issuing an injunction because the case was not likely to succeed on the merits due to Burford. Id. In holding as it did, the court noted the need for "uniform regulation" in the regime governing water withdrawals. Id. 795.
GBRA notes that the considerations underlying Sierra Club are present in the instant case given that water is a vital interest, and comprehensive state water regulation has only expanded since Sierra Club was decided. (See id. at 25.) In GBRA's estimation, Burford abstention is especially warranted in this case given that: "(1) the comprehensive water management actions that TAP seeks to require throughout the Guadalupe and San Antonio River Basins are far greater in scope and potential disruption than the relief sought in [Sierra Club], and (2) the specific actions in [Sierra Club] had already been determined to cause takes of listed species, whereas here there is no proof that the `take' occurred at all ...." (Id.)
Plaintiff argues that Burford abstention is a very narrow exception to a federal court's duty to adjudicate cases before it. Plaintiff notes several subsequent Supreme Court cases in which Burford abstention was rejected, including New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) ("NOPSI") and Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996).
Plaintiff also argues that Sierra Club is factually distinguishable, and contends that it is an "outlier among Burford cases." (D.E. 90 at 41.) Plaintiff contends that Sierra Club in fact supports denial of abstention in this case. Specifically, the Sierra Club decision rested in large part on the 1993 Edwards Aquifer Act, which was specifically designed to address the preservation of endangered species. In contrast, no such legislation exists here, and the S.B. 3 process, even if it ensures water for the Cranes, is not nearly complete.
In addition, Plaintiff argues that S.B. 3 has numerous deficiencies, in that it would not regulate permitted users with permit dates before September 1, 2007, would not regulate exempted users, would not allow challenges to permits already issued, and gives no particular consideration to endangered species. (D.E. 90 at 43-44.) Plaintiff also contends that no timely and adequate state court review is available here, particularly with respect to Plaintiff's ESA claims. (D.E. 90 at 44-45.) Plaintiff argues that the S.B. 3 process "does not secure a mandate or establish a process to protect Whooping Cranes as required by the Endangered Species Act." (D.E. 90 at 46.) Plaintiff contends that there is simply no reason to abstain in deference to the existing regulatory system, which has already resulted in takes. (D.E. 90 at 46-47.) Moreover, none of S.B. 3's provisions can guarantee sufficient freshwater flows for the Cranes, and there is no definitive timeline for completion of the S.B. 3 process. (D.E. 90 at 48-50.)
Plaintiff also asserts that none of the other state processes that GBRA has identified, such as the South Texas Water Planning Group, the TCEQ water rights permitting process, and the Edwards Aquifer Recovery Implementation Plan, warrant abstention, as these also do not adequately address Plaintiff's concerns. (D.E. 90 at 51-53.) Finally, Plaintiff contends that application of the five Wilson factors also do not warrant abstention in this case. (D.E. 90 at 54-55.)
The Supreme Court has stressed "the narrow range of circumstances in which Burford can justify the dismissal of a federal action." Quackenbush, 517 U.S. at 726, 116 S.Ct. 1712. The Court begins by reviewing two of the most recent Supreme Court opinions on Burford abstention, NOPSI and Quackenbush. In NOPSI, the Supreme Court distilled its previous Burford rulings into the following general principle:
491 U.S. at 361, 109 S.Ct. 2506. The Supreme Court ultimately rejected application of Burford abstention in NOPSI, stating:
491 U.S. at 363-64, 109 S.Ct. 2506.
In Quackenbush, the Supreme Court further summarized its Burford jurisprudence as follows:
Quackenbush, 517 U.S. at 727-28, 116 S.Ct. 1712 (emphasis added; internal citations omitted). In Quackenbush, the Court ultimately rejected application of Burford because monetary damages were sought, not equitable or other discretionary relief. Id. at 731, 116 S.Ct. 1712 (confirming that Burford is applicable "to all cases in which a federal court is asked to provide some form of discretionary relief."). Thus, NOPSI and Quackenbush demonstrate that Burford abstention is a very narrow, limited exception, particularly in light of this Court's duty to adjudicate all cases over which it has jurisdiction, including cases brought under ESA Section 9.
With these general principles in mind, the Court now turns to Sierra Club v. City of San Antonio and its application of Burford. In Sierra Club, Plaintiff brought suit under the ESA, alleging that the City of San Antonio's water withdrawals from the Edwards Aquifer resulted in a "taking"
On appeal, the Fifth Circuit did not consider "the ultimate question of whether the district court should abstain," but rather "whether the court properly entered a preliminary injunction," which "turns on whether the Sierra Club established a substantial likelihood of success on the merits in the face of the Burford abstention doctrine." Id. at 793. The Court found that Burford abstention was applicable. See id. at 794-98. It first reviewed the structure and function of the Edwards Aquifer Act:
112 F.3d at 794 (emphasis added). The court recognized that, "[t]he regulation of water resources is likewise a matter of great state concern.... [C]onservation of water has always been a paramount concern in Texas, especially in times, like today, of devastating drought.'" Id. (internal citations omitted). Further, the court observed 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." Id. The court also noted, "[a]s 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." Id. at 795.
In this case, the issue is not whether this Court should follow Sierra Club, but rather whether the factual circumstances present in that case are present here, and thus warrant application of Burford abstention. "As has been stated time and time again, Burford abstention requires a very careful and fact-specific inquiry." Property & Cas. Ins. Ltd. v. Cent. Nat. Ins. Co. of Omaha, 936 F.2d 319, 326 n. 13 (7th Cir.1991); Navajo Life Ins. Co. by Gallinger v. Fidelity and Deposit Co. of Maryland, 807 F.Supp. 1485, 1489 (D.Az. 1992) (requiring a "fact-specific inquiry" in applying Burford abstention). The Court must therefore look beyond the superficial similarities between Sierra Club and the case at bar (i.e., endangered species and
First, the Sierra Club court expressly recognized that the Edwards Aquifer Act "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.'" 112 F.3d at 794. Such specific reference to endangered species is absent in S.B.3, as Defendants acknowledge. (D.E. 173 at 2; July 28, 2010 Hearing at 1:46:54) (Judge: "Does [S.B. 3] say specifically anywhere in there `endangered species?'" Mr. Berwick: "No."). While S.B. 3 does make reference to supporting a "sound ecological environment," the statute outlines many other factors to be considered "[i]n adopting environmental flow standards for a river basin and the bay system," including "economic factors," "the human and other competing water needs in the river basin and bay system," and "any other appropriate information," a catch-all provision. Tex. Water Code § 11.1471(b)(7), (8), (10). With these various competing interests, there is no assurance that the interests of endangered species will be considered, let alone prevail. As the numerous amicus submissions in this case demonstrate, the interests of municipalities, counties, and private entities concerned about having sufficient water to maintain growth may outweigh any objection from those seeking to protect endangered species. See Sutherland, 2007 WL 1300964, at *15 (distinguishing Sierra Club based upon the Edwards Aquifer Act's specific reference to the ESA).
Second, while the Edwards Aquifer Act was characterized by the Sierra Club court as a "sweeping effort by the Texas Legislature to regulate the aquifer, with due regard for all competing demands for the aquifer's water," which "vests the Edwards Aquifer Authority with `all the powers and privileges necessary to manage, conserve, preserve, and protect the aquifer....'" 112 F.3d at 794, S.B. 3 has no such broad reach. The parties do not dispute that S.B. 3 would have no effect whatsoever on permits issued before September 1, 2007. (See D.E. 57 at 12) ("A permit issued before September 1, 2007 will not be affected by the to-be-adopted flow standards and set-asides [under S.B. 3]. If, however, the holder of such a permit applies to amend it to increase the authorized amount, the set-asides and standards will come into play with respect to the proposed increase."); Tex. Water Code § 11.147(e-1) ("This subsection does not affect an appropriation of or an authorization to store, take, or divert water under a permit or amendment to a water right issued before September 1, 2007."). S.B. 3 also contains no authority to regulate exempted water users, such as domestic and livestock users. S.B. 3 simply does not address Plaintiff's concerns. Plaintiff alleges that water usage by permitted and exempted users before and during the 2008-2009 drought caused a "taking" of the Whooping Cranes. Even if the S.B. 3 process went into effect, and curtailed or prevented the issuance of any new permit from this point forward, this would not impact existing water usage, the very usage that Plaintiff alleges caused a taking in the first place.
Third, Defendants acknowledge that TCEQ is not scheduled to issue a rule establishing flow standards and set asides for the Guadalupe and San Antonio River basins pursuant to S.B. 3 until September
Finally, the Sierra Club court placed particular emphasis on the fact that "the aquifer and the endangered species are entirely intrastate, which makes management of the aquifer a matter of peculiar importance to the state." Id. at 794. Such is not the case here. Plaintiffs have demonstrated that the Whooping Cranes are migrating birds that return to Canada in the spring, making stops along the way. The interstate, and indeed international nature of the Cranes, further suggests that Burford abstention is not appropriate here. See Sutherland, 2007 WL 1300964, at *15 (distinguishing Sierra Club on the grounds that the endangered spotted owl inhabited an interstate range). These considerations demonstrate that, while Burford abstention may have been appropriate in Sierra Club, it is not appropriate here.
A review of the five Burford factors articulated in Wilson, 8 F.3d at 314, also counsels against abstention. First, this cause of action arises under the ESA, not state law. While the Fifth Circuit has explained that "Burford abstention does not so much turn on whether the plaintiff's cause of action is alleged under federal or state law, as it does on whether the plaintiff's claim may be `in any way entangled in a skein of state law that must be untangled before the federal case can proceed,'" 112 F.3d at 795, "the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 815 n. 21, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). In any event, Plaintiff's ESA claim cannot be said to be "entangled in a skein of state law that must be untangled," any more than any other ESA case that challenges state regulation, such as Strahan or Loggerhead Turtle.
Second, it does not appear that the case would require "inquiry into unsettled issues of state law or into local facts." Wilson, 8 F.3d at 314. While complex issues of state law may be involved, Texas water law is not "unsettled" in such a way that would require interpretation from the state courts, nor are any "local facts" particularly determinative.
Third, while water is undoubtedly an important state interest, the protection of endangered species is an important national and even international interest, as recognized by the ESA itself. See 15 U.S.C. § 1531(a)(3) ("[Endangered species] are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."); 15 U.S.C. § 1531(a)(4)(A) ("The Congress finds and declares that ... the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to ... migratory bird treaties with Canada and Mexico."). The ESA in fact seeks to harmonize these competing
Fourth, the state's need for a coherent water resources policy, while important, must be subject to applicable federal law, including the ESA. This lawsuit would not somehow make state water law "incoherent," but rather would ensure that TCEQ officials abide by the ESA when exercising their authority over state water resources.
Finally, although there is a "special state forum for judicial review," as provided by the Texas Administrative Procedures Act, Tex. Gov't Code ch. 2001, because S.B. 3 has no effect upon water permits issued before September 1, 2007, any state court review would be only as to determinations made under S.B. 3 with respect to new and recent permits. Moreover, any such review would not focus specifically on protection of endangered species, but rather upon all the various considerations involved with water permitting. There is no guarantee that Plaintiff's interests in protecting the Cranes would be adequately protected in state proceedings.
In sum, the Court declines to apply the limited Burford abstention principle in this case. Unlike the state law at issue in Sierra Club, neither S.B. 3, nor any other state process provides an adequate basis for abstention.
For the reasons stated above, the Court DENIES Plaintiff's Motion for Partial Summary Judgment on Standing. (D.E. 213.) TCEQ Defendants' Motion for Summary Judgment (D.E. 214), and GBRA's Motion for Summary Judgment (D.E. 215), are also DENIED.
First, the S.B. 1 process sets up different regions for water conservation purposes. The Guadalupe and San Antonio Rivers are within Region L. Region L has no authority over existing water diversions. The regional water plan does list endangered species found in the region, including the Whooping Crane, but does not specifically address protection of those species. Further, the S.B. 1 process has been in effect since 1997, and apparently has not had the necessary effect, if Plaintiff's allegations are true. See http://www. regionltexas.org/.
Second, to the extent that GBRA relies upon the existing permitting process, this is the very process at issue in this case. It would make little sense to defer to the very process that Plaintiff contends is inadequate.
Finally, the EARIP process relates to conservation efforts in the Edwards Aquifer. It does not specifically relate to the Whooping Cranes, and has no authority to regulate surface water use, which is directly at issue in this case. See EARIP Final Rules § 705.3, available at http://www.edwardsaquifer.org/ files/Final_Rules_May_2011.pdf ("The power of the Authority does not extend to the regulation of the diversion and beneficial use of surface water. As may be authorized by law, the Authority may regulate activities affecting the quality of surface water in order to preserve and protect the Aquifer, prevent the waste or pollution of the Aquifer, and enforce water quality standards.").
Many commentators have also concluded that state water rights should not prevail over ESA considerations. See, e.g., Glen Spain, Dams, Water Reforms, and Endangered Species in the Klamath Basin, 22 J. Envtl. L. & Litig. 49, 68 (2007) ("[T]he ESA itself does not defer to state water-rights law and contains only the vague statement that it is `the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.' It is therefore unlikely that a deference to state water laws will ever be interpolated into the ESA."); Reed D. Benson, Deflating the Deference Myth: National Interests v. State Authority under Federal Laws Affecting Water Use, 2006 Utah L.Rev. 241, 308-10 (2006) (The ESA "makes no mention of preserving state water allocation authority; instead, it speaks of resolving water issues in concert with species conservation, indicating that Congress anticipated that issues would arise and that the national interest in protecting endangered species should not simply give way to the interests of states and traditional water users.... [T]he ESA mandated a dominant federal role that seems inconsistent with much deference, even if the national interests in ... species protection incidentally infringe on state water allocation authority.") (internal quotation marks omitted).
