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Sierra Club v. San Antonio, City of

ELR Citation: 28 ELR 20124
Nos. 96-50918, 115 F.3d 311/(5th Cir., 06/09/1997)

The court holds that the state of Texas met the requirements for intervention as of right in various capacities in an action where an environmental group brought suit under the Endangered Species Act to enjoin various parties who pump water from the Edwards aquifer. The court first holds that the denial of intervention is a collateral order that is immediately appealable. The district court granted the state's motion to intervene in its capacity as an aquifer pumper, but denied it permission to intervene as the state qua, on behalf of agencies that regulate state water and wildlife rights, and on behalf of its citizens. That the attorney general serves as the common legal representative of each of the various state agencies (and of the state qua and as parens patriae) does not fuse the varied interests of each of the diverse parts into the whole. The district court did not merely place limitations on a single party's right to participate in a legal proceeding, but rather it denied completely the rights of various different parties to participate in the instant litigation.

The court next holds that the state, in its other capacities, met the requirements to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2). Because the environmental group did not contest the timeliness of the state's application or whether the disposition may impair the state's ability to protect its interests in the subject matter, the court deems these requirements satisfied. The court also finds that the state's interests in the subject matter of the litigation are several and important. The state in its various capacities has interests in protecting the self-governing authority of the Edwards Aquifer Act, regulating water rights of the aquifer pumpers, protecting fish and wildlife resources, maintaining and regulating agricultural interests affected by the aquifer, and protecting the physical and economic health and well-being of its citizens. Last, the court holds that the aquifer pumpers will not represent adequately the interests of these state constituencies and, under Texas law, may not do so.

[A decision related to this litigation is published at 27 ELR 21051].

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 Ctr.
106 S. St. Mary's St., San Antonio TX 78205
(210) 226-1166

Before Duhe and Barksdale, JJ.