UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-50260

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SIERRA CLUB,

Plaintiff-Appellee,

and

GREEN VALLEY SPECIAL UTILITY DISTRICT, ET AL.,

Intervenors-Plaintiffs-Appellees,

versus

BRUCE BABBITT, in His Official Capacity as

Secretary of the Department of the Interior, ET AL.,

Defendants,

STATE OF TEXAS,

Intervenor-Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(CA-MO-91-69)

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No. 95-50165

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SIERRA CLUB,

Plaintiff-Appellee,

GREEN VALLEY SPECIAL UTILITY, ET AL.,

Intervenors-Plaintiffs,

versus* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

- 2 - BRUCE BABBITT, in His Official Capacity as

Secretary of the Department of the Interior, ET AL.,

Defendants,

STATE OF TEXAS,

Intervenor-Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(CA-MO-91-69)

_____________________________________________________

February 26, 1996 Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM: *

At issue are only post-judgm ent matters. And, as noted

previo usly, it is time for this litigation to end. Because the

district court's appointment of a monitor was reasonable in light

of the morass of post-judgment developments in this case and thus

not an abuse of the court's discretion in effectuating a judgment,

we AFFIRM both the appointment of the monitor and the assessment of

a portion of his costs against Texas. However, because the relief

sought in this action, the creation and dissemination of springflow

information by the federal defendants, has been achieved, all other

issues are moot; we R EMAND with instructions to conclude this

action.1 The species are th e San Marcos salamander, the fountain

darter, the Texas blind salamander, the San Marcos gambusia, and

Texas wild rice.

2 Early in the proceedings, the district court granted the State

of Texas intervention of right pursuant to F ED

. R. C IV

. P. 24(a).

- 3 - I.

Covering an expanse of about 3,600 square miles, the Edwards

Aquifer stretches through several counties in central Texas. It is

home to five species identified as either "endangered" or

"threatened". 1

In 1991, the Sierra Club filed this action against the

Secretary of the United States Department of the Interior and the

United States Fish and Wildlife Service (the federal defendants)

pursuant to the Endangered Species Act (ESA), 16 U.S.C. § 1531 et

seq

. Texas governmental entities and private water users

intervened as defendants. 2

After a bench trial in May 1993, the district court entered

findings of fact and conclusions of law, and a final judgment. The

court granted the relief sought by the Sierra Club in its amended

complaint

-- it enjoined the federal defendants to develop and

disseminate information about the springflows necessary to protect

the species in issue, as well as the minimum water levels in the

aquifer necessary to protect them. S ee Sierra Club v. Babbitt

, 995

F.2d 571 (5th Cir. 1993). The court ordered that Texas prepare an

Edwards management plan; but, it should be noted that Texas sought

such an order. Id . at 574, n.4.- 4 -

Several of the intervenor defendants, as well as the federal

defendants, appealed. But, when the Sierra Club agreed to certain

semantic changes in the district court's findings and judgment, the

federal defendants dismissed their appeal. Contending that the

remaining appellants lack ed standing to appeal, the Sierra Club

moved to dismiss the appeal. In support, it stated to our court

that its amended complaint

considerably narrowed the relief sought,

eliminating anything that could be construed

as a request that the court order the Federal

Defendants to limit or regulate the pumping of

water from the Edwards. In particular, the

Plaintiffs dropped their request for an injunction against the Federal Defendants "to

require enforcement of the [ESA] to ensure

that the natural springflow from the Comal

Springs is at least the minimum required flow

at all times", retaining the more modest

request that the Federal Defendants be ordered

to "determine" the biologically r equired

minimum springflows . The amended complaints,

like the original complaints, sought no relief

against the Intervenor[s]-Defendants, or any

party other than the Federal Defendants.

....

... In the amended pleading upon which

the case below wa s tried Plaintiffs did not

seek an order directing the [Federal

Defendants] or anyone else to achieve pumping

restrictions or to take any other action that

will mandate pumping reductions. It therefore

simply will not work for the Intervenor[s]-

Defendants to imply that the Judgment below

... "impose[s] severe restrictions upon the

sole, historic water supply of a major city";

or that the court below is attempting ... "to

regulate groundwater pumping throughout a 3,600 square mile area" .... The Judgment

below does no such thing.

(Citations omitted; emphasis in italics in original; emphasis in

bold added.)- 5 -

Agreeing with the Sierra Club, our court dismissed the appeal

in August 1993. S ierra Club v. Babbitt

, 995 F.2d 571 (5th Cir.

1993). Our court recognized that

[t]he appellants allege numerous injuries from

the district court's judgment, but we decide

that the judg ment and findings are of no

consequence to them. On its face, the

judgment orders nothing of the appellants.

Nor will the judgment affect the appellants in

any future litigation, because the only issue

necessarily decided by the district court is

that [the] FWS has a nondiscretionary duty to

promulgate springflow information. The

appellants ca nnot legitimately blame the

judgment for causing any future litigation;

the information ordered by the district court

is in no wi se a prerequisite to ESAenforcement litigation.

Id. at 575 (emphasis in original).

In November 1993, nearly a year after the bench trial, and

several months after entry of judgment, the Sierra Club moved for

appointment of an expert (a "monitor") to aid the court in

determining whether any state or federal plan complied with the

ESA, and, if not, what action the district court should take.

Relying upon its "inherent equitable power to appoint a person

...

to assist it in administering a remedy", Ruiz v. Estelle

, 679 F.2d

1115, 1161 (5th Cir.), amended in part, vacated in part , 688 F.2d

266 (5th Cir. 1982), cert. denied

, 460 U.S. 1042 (1983), the court

designated a monitor (Monitor Order).

After appealing the Monitor Order, the State of Texas, on

behalf of the Texas Department of Agriculture (TDA), moved the

district court to stay the monitor's activities, citing, inter

alia , the assessment of costs for the monitor. In response, the- 6 -

Sierra Club moved to dismiss the TDA; and the district court did so

(TDA Dismissal Order). The TDA Dismissal Order is also on appeal.

Sierra Club sought to amend its complaint to seek relief from

the State of Texas in April 1995. Although the district court

granted leave to amend, our court, by writ of mandamus, overturned

that grant. Later, the Sierra Club moved our court to remand the

case conditionally to allow them to again broaden the scope of this

litigation.

Muc h of the post-judgment complication arose out of the

t roubled birth of a state regulatory entity, the Edwards Aqui fer

Authority. The Texas legislature created the EAA in 1993 and

charged it with regulating withdrawals of water from the aquifer,

as well as developing a comprehensive management plan for it. But,

because the creation of the EAA implicated section 5 of the Voting

Rights Act, 42 U.S.C. § 1973c, Texas was obligated to obtain

federal approval of the EAA. It was not obtained until after the

July 1995 oral argument in this appeal; this court was notified

that the EAA would begin operation in late August 1995.

However, preclearance was not the sole obstacle for the EAA.

A water conse rvation district sought injunctive relief in state

court to prevent the EAA from operating, as well as a declaration

that the legislation creating the EAA violate d the Texas

Constitution. After imposing a temporary injunction that allowed

t he interim directors to be sworn in, to meet, and to defend

themselves, but not to take any action in furtherance of their

legislative mandate to regulate draws from the Edwards, the state3 The plan's publication was delayed by, i nter alia

, th e

government closing occasioned by the budget debate impasse of

Dec ember 1995. Moreover, budgetary constraints have further

impeded this process in that another agency within the Department

of Interior, the National Biological Service, has proposed to close

the San Marcos National Fish Hatchery and Technology Center. The

hatchery has conducted research for many years concerning the

species at is sue and has been used as a refugium to maintain

captive stocks of those species during drought times. Complicating

matters, the Sierra Club sent the NBS notice of intent to sue under

the ESA if the hatchery were closed. These matters had to be

considered by the personnel responsible for preparing the recovery plan. (In fact, the Sierra Club filed such an action on February

13, 1996, and the district court has issued a temporary restraining

order preventing the hatchery's closure.)

- 7 - court in late November 1995 declared that the statute creating the

EAA violated the Texas Constitution. The Texas Supreme Court has

slated oral argument for early March 1996.

Dropping back to October 1995, our court, antici pating that

the EAA would become operational and conduct regulatory activities

capable of mooting this appeal, stayed this case and remanded for

findings on justiciability. After the district court made such

findings, the Sierra Club moved this court to lift the stay, so

that the district court's proposed order, prepared concomitantly

with its additional findings, could take effect. (That order,

among other things, would have required the federal defendants to

demonstrate to the district court that the FWS had "implement[ed]

that recovery plan to the point at which reasonable assurance [was]

provided th at springflows will never again drop below jeopardy

levels".) This motion and the numerous other pending motions in

our court are rendered moot by this opinion.

On February 14, 1996, the FWS published the long-awaited

re covery plan. 3 It includes findings by the FWS on the minimum- 8 -

springflow levels needed to avoid takes under the ESA. (As noted,

the lack of this information was the alleged cause of Sierra Club's

i njury. S ierra Club v. Babbitt

, 995 F.2d at 574 n.5.) The plan

also addresses maintaining sufficient water in the habitat. Notice

of the plan is to be published in the Federal Register.

II.

At issue are: (1) the district court's authority to a ppoint

the monitor; (2) the assessment of part of the monitor's costs

against the State of Texas; and, (3) the dismissal of the TDA. In

sum, we hold that: (1) the post-judgment complications, especially

the confusion over the EAA, more than justified the appointment;

(2) the assessment of part of his costs against Texas, which sought

to participate in preparation of a recovery plan, was proper; and

(3) the dismissal of TDA, whether proper or not, is no longer a

live controversy because, with the completion and notice of the

federal recovery plan, the requested relief has been achieved.

A.

As a preliminary matter , we note that we have appellate

jurisdiction over the Monitor and TDA Dismissal Orders. "To be

appealable, an order must be final, it must fall within the

specific class of interlocutory orders made appealable by statute,

or it must fall within some jurisprudential exception." L akedreams

v. Taylor

, 932 F.2d 1103, 1107 (5th Cir. 1991) (footnotes omitted).

1.

In Catlin v. United States , 324 U.S. 229 (1945), the Supreme

Court defined "final decision" for purposes of appeal as "generally4 See generally, Blossom v. Milwaukee & C.R.R.

, 68 U.S. 655

(1864) (establishing doctrine of practical finality in postjudgment context).

5 See generally, Cohen v. Beneficial Indus. Loan Corp

, 337 U.S.

541 (1941).

- 9 - ... one which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment". Id. at 233. When

appeals are ta ken from post-judgment orders, however, appellate

courts encounter a dilemma in determining whether the order being

appealed is "final".

Combining the related concepts of practical finality 4 and the

collateral orde r doctrine 5

, our court, in United States v.

McWhirter

, 37 6 F.2d 102 (5th Cir. 1967), recognized that the

Supreme Court

has held final and appealable ancillary orders

which determine substantial rights of the

parties which, if not promptly reviewed, will

subject t he party to irreparable harm. In

such a situation, review postponed amounts to

review denied.

Id. at 105 (citations omitted). The Monitor Order fits this

category.

For reaching this conclusion, it is necessary to examine the

scope of that post-judgment order. In granting the Sierra Club's

motion for the appointment of the monitor, the district court

stated that the monitor's purpose would be to aid it

in determining whether further relief from

this Court is necessary to "avoid unlawful

takings of listed species, any appreciable

reduction in the likelihood of survival and

recovery of list ed species in the wild, and

any appreciable diminution of the value of

critical habitat for the survival and recovery- 10 - of any listed species" caused by inadequate

regulation of withdrawals from the Edwards

Aquifer.

In the M onitor Order, the district court authorized the

monitor to gather and analyze information regarding a wide range of

matters t hat may affect the aquifer, as well as to monitor, on a

continuing basis, inter alia

, the efforts of the State of Texas to

regulate withdrawals from it. Additionally, the district court

ordered the Texas Natural Resou rces Conservation Commission to

"correct" the plan that its predecessor had submitted previously.

The order directed th e monitor to inform the court if any party

"fails or refuses to cooperate fully". Finally, the order remains

in effect until "such time as the State of Texas implements an

adequate regulatory plan or system to prevent violations of the ESA

or until such other time as the Court deems proper, whichever comes

first".

But, as the Sierra Club stated in the earlie r appeal, the

final judgment was of narrow scope and breadth, and did not involve

the State of Texas. On the other hand, the Monitor Order exposes

t he action or inaction of the State of Texas to supervision by a

court-appoint ed official. Thus, the order has the potential to

affect substantial rights of the State. We conclude that we

possess appellate jurisdiction.

2.

As for appeal from the TDA Dismissal Order, it is wellestablished in our circuit that the denial of a motion to intervene

of right is appealable immediately as a collateral order. E .g.

,- 11 -

Valley Ranch Dev. Co. v. Federal Deposit Ins. Corp.

, 960 F.2d 550,

555-56 (5th Cir. 1992); Bush v. Viterna

, 740 F.2d 350, 351 n.1 (5th

Cir. 1984). The district court's dismissal of the TDA, which had

been granted intervention of right, operates effectively as a

denial of suc h intervention. Accordingly, we have appellate

jurisdiction over that order as well.

B.

The post-judgment deve lopments in this case are made more

complex by the presence of Texas as a party. Because it sought to

be included in the remedy, when it sought to be ordered to develop

its own plan for management of the Edwards, and then embarked on an

arduous journey to create a regulatory entity, the district court

cannot be faulted for appointing an expert to assist in

effectuating the judgment. The confusion created by the parallel

efforts of the St ate's legislative action and the Sierra Club's

efforts to enforce the judgment more than justified the appointment

of a monitor.

As stated, our court, in Ruiz v. Estelle , 679 F.2d at 1161,

n oted the long-established power of federal courts to appoint an

agent to supervise the implementation of decrees. In view of the

post-judgment events at play, the appointment of a monitor did not

exceed the district court's power.

C.

Texas complains that it cannot be held responsible for part of

the cost of enforcing the judgment, when it ordered nothing of

Texas. We hold otherwise; because Texas injected itself into the- 12 -

remedial process by asking to participate in the creation of its

own plan for management of the Edwards, it may be held responsible

for bearing a portion of the cost of the monitor.

D.

Whether TDA should have remained a party in an action that is

complete and in which no relief affects TDA simply does not

constitute a just iciable controversy. When it opposed the Texas

appeal of the amended judgment, the Sierra Club defined the scope

of the relief it sought and was granted by that judgment. Because

that relief has now been obtained, as discussed below, there can be

no controversy regarding whether TDA should be a party to this suit

which has concluded in a manner that does not affect TDA.

Afte r the Sierra Club amended its complaint, the defendants

moved to dismiss. In response, the Sierra Club stated the limited

scope of this action:

The relief sought by the P laintiffs in this

case is really quit e narrow. All Plaintiffs

are seeking from this court is an order

compelling the FWS to determine the biological

requirements of the species within a

reasonable time and to notify other interested

parties of these requirements.

And, in response to the federal defendants' motion to dismiss

the original complaint, the Sierra Club defined once again the

limited scope of this action, declaring that

the Sierra Club and GBRA [Guadalupe-Blanco

River Authority] have deliberately sued only

the Federal Defendants, and at this time seek

only:

(1) findings of fact concerning the minimum

springflows required to prevent ta kings

under [the] ESA ...; and6 We note that some uncertainty exists regarding the ESA's

requirement that recovery plans be implemented. See Daniel J.

Rohlf, The Endangered Species Act: A Guide to Its Protections and

Implementation, 89 (1989) (noti ng courts have yet to interpret

whether duty to implement recovery plans i ncludes duty that

Secretary must undertake activities identified in plans to conserve species). See also Barbara Craig, "The Federal Endangered Species

Act", 38 OCT Advocate (Idaho), 12 (1994) (explaining that recovery

plans are simply proposals and recommendations lacking force of

law).

- 13 -

(2) an order directing the Federal Defendants

to develop and implement a plan "for the

conservation and survival" o f the

endangered species at Comal and San

Marcos Springs, under [the] ESA....

Then, as discussed, the Sierra Club further limited its

articulation of the relief sought by advising our court, in its

motion to dismiss the appeal of the intervenor defendants, that

this action had proceeded to trial on the "modest request" that the

federal defendants be ordered to determine minimum springflows.

With publication of the recovery plan, the FWS has announced

those springflow levels required to avoid takes under the ESA in a

comprehensive plan for the conservation and survival of the species

in issue. Thus, all relief sought, all that could be awarded, has

been obtained through this plan.

While the judgment did order the federal de fendants to

"implement" the recovery plan once it was created, we conclude that

"implement", in the context of th is action, means simply the

publication and notice of the plan. Both our understanding of the

ESA and Sierra Club's assertions regarding the scope of the relief

it sought support this conclusion. 6 The recovery plan is

consistent with our conclusion; its "implementation schedule"- 14 -

provides that the plan does not commit any party to "actually carry

out a particular recovery task or expend the estimated funds".

If the Sierra Club wants additional relief, then it must file

a new action. No amount of post-judgment paper generation can

convert a jud gment ordering federal defendants to create and

disseminate information into a judgment enjoining Texas to restrict

pumping from the Edwards. In short, the Sierra Club is stuck with

the limited relief that, in the earlier appeal, it told this court

it sought. If "implement" meant more, then Sierra Club should not

have told this court, in that earlier appeal, that it meant only

the creation and dissemination of information. This action is

over.

III.

For the reasons discussed above, the order appointin g the

monitor and assessing his costs is AFFIRMED

. Because we hold that,

with the publication and notice of the recovery plan, this action

became devoid of any live controversy, we REMAND with instructions

th at the district court take the ministerial steps necessary to

conclude this case promptly.

AFFIRMED and REMANDED