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Sierra Club v. San Antonio, City of

ELR Citation: 27 ELR 21051
Nos. 96-50636, 112 F.3d 789/(5th Cir., 04/30/1997)

The court vacates a preliminary injunction that imposed limitations on the withdrawal of water from an aquifer to conserve endangered and threatened species. The court holds that plaintiff-appellee environmental group 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 the Burford abstention doctrine. A state law creating a scheme to control and manage the use of the aquifer can fairly be characterized as a comprehensive regulatory scheme. The law empowers a state agency to manage, conserve, preserve, and protect the aquifer, and addresses the preservation of endangered species. The court rejects the assertion that abstention was unwarranted because the agency had not had time to develop a plan for managing the aquifer and dealing with the emergency situation. Abstention is not applicable only where the state regulatory scheme is fully in place.

A dissenting judge would reach the substantive arguments that the appellants raise, because he finds the Burford abstention doctrine inapplicable.

Counsel for Plaintiff
Stuart N. Henry
Henry, Lowerre, Johnson, Hess & Frederick
202 W. 17th St., Austin TX 78701
(512) 479-8125

Counsel for Defendants
Russell Johnson
Wells, Pinckney & McHugh
800 One Alamo Center
106 S. St. Mary's St., San Antonio TX 78205
(210) 226-1166

Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.