IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-50918

Summary Calendar

_______________

SIERRA CLUB,

Plaintiff-Appellee

VERSUS

CITY OF SAN ANTONIO, et al.,

Defendants,

STATE OF TEXAS,

Intervenor-DefendantAppellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

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
2

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 wildriceSSand one “threatened” speciesSSthe San Marcos salamanderSSeach

of which, the Sierra Club contends, is jeopardized by the disruptions 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 Underground 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
3

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 Agriculture (“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 capacities.

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
4

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 intervention 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
 

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...)

5

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
(...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).

6

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
7

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.
8

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.
9

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.