              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                      _____________________

                           No. 96-50636
                      _____________________


     SIERRA CLUB,

                                      Plaintiff-Appellee,
                                versus

     CITY OF SAN ANTONIO, ET AL,

                                     Defendants,
     NEW BRAUNFELS UTILITIES,

                                     Defendant-Appellee,

                                versus


     CITY OF SAN ANTONIO, SAN ANTONIO WATER SYSTEMS, CITY OF
     HONDO, TEXAS, On Its Behalf and All Other Municipal
     Industrial, Commercial, Domestic and Livestock Pumpers in
     Medina, CITY OF UVALDE, TEXAS, On Its behalf and All Other
     Municipal, Industrial, Commercial, Domestic and Livestock
     Pumpers in Uvalde and Kinney Counties, CITY OF LEON VALLEY,
     TEXAS, On Its Behalf and All Other Municipal, Domestic and
     Livestock Pumpers in Bexar and Atascosa Counties, REDLAND
     STONE PRODUCTS COMPANY, On Its Behalf and All Other
     Industrial and Commercial Pumpers, SOUTHWEST RESEARCH
     INSTITUTE, On Its Behalf and All Other Industrial and
     Commercial Pumpers in Bexar and Atascosa Counties, UNITED
     SERVICES AUTOMOBILE ASSOCIATION, On Its Behalf and All Other
     Industrial and Commercial Pumpers in Bexar and Atascosa
     Counties, and BEXAR METROPOLITAN WATER DISTRICT,

                                     Defendants-Appellees.

     _______________________________________________________

        Appeals from the United States District Court for
                  the Western District of Texas
     _______________________________________________________
                          April 30, 1997

Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.

REAVLEY, Circuit Judge:
     This appeal is taken from a preliminary injunction entered

by the district court to regulate the withdrawal of water from

the Edwards Aquifer, a large underground reservoir supplying

water to central Texas.   Because we hold that the Sierra Club did

not establish a substantial likelihood of success on the merits,

in light of the abstention doctrine enunciated in Burford v. Sun

Oil Co.,1 we vacate the injunction.

                             BACKGROUND

     The City of San Antonio relies exclusively on the Edwards

Aquifer for its water.    Other parts of central Texas also rely on

the aquifer as a primary source of water.      It supplies over one

million people with water in San Antonio alone.

     The aquifer discharges water into the Guadalupe River Basin

at the San Marcos and Comal Springs.      According to the Sierra

Club the annual recharge of the aquifer for several years has

been exceeded by the annual discharge (withdrawals plus

springflow), causing the aquifer level to fall each year.      It

claims that a continuation of the status quo inevitably will

either lead to the complete drying up of the springs or render

them intermittent.

     In the area of the San Marcos and Comal Springs, the aquifer

is home to five plant and animal species designated as endangered

or threatened under the Endangered Species Act.2     Of the five,



     1
         319 U.S. 315 (1943).
     2
         16 U.S.C. §§ 1531-44.

                                  2
one -- the fountain darter -- is found at Comal Springs.    The

fountain darter is an endangered species.

     In 1996 the aquifer suffered a severe drought.    The spring

flow at Comal Springs fell from April through June and then

leveled off.   In June of 1996, the Sierra Club’s expert zoologist

observed five or six “very thin” fountain darters in the

uppermost spring run of Comal Springs.    The Sierra Club claims

that it presented direct evidence of fountain darter deaths,

injuries in the form of emaciation, and a scarcity of young

fountain darters due to the low spring flows, and that there is a

causal link between the low spring flows and defendants’ pumping

of water from the aquifer.   San Antonio’s hydrology expert stated

that he did not anticipate further declines in the water levels

after August 1, 1996, and that the water level would rise in the

fall.

     In a prior suit, Sierra Club v. Babbitt,3 filed in 1991 in

the same district court, the Sierra Club sued the Secretary of

the Interior and the United States Fish and Wildlife Service

under the Endangered Species Act.    The suit claimed that the Fish

and Wildlife Service had failed to adopt an “adequate recovery

plan” under that Act.   This suit lasted five years, and included

several appeals to the Fifth Circuit.    In one appeal our court

recognized abstention concerns, and particularly Burford

abstention, as sometimes calling for federal court abstention “to

allow the state’s comprehensive regulatory scheme to operate

     3
         No. Mo-91-CA-069 (W.D. Tex.).

                                 3
without the risk of competing attempts between that regulator and

the federal courts to exercise control over the same entity.”4

On remand, the district court declined to abstain, because at the

time the Edwards Aquifer Act5 (described below) had been declared

unconstitutional.   The court reasoned that there was no competing

state regulatory system in place that would make abstention

appropriate under Burford.   In 1996 this court ordered the

Babbitt suit dismissed as moot after the Fish and Wildllife

Service published a revised recovery plan.

     The Sierra Club brought the pending suit in June of 1996

under the Endangered Species Act.    The complaint, seeking

certification of a defendant class, alleges that defendants are

“taking” endangered species in violation of the Endangered

Species Act.6   The complaint seeks to enjoin defendants “to

reduce withdrawals from the Edwards by such levels as are

necessary to maintain minimum natural springflows from the Comal

and San Marcos Springs for the conservation and survival of the

endangered and threatened species living at and downstream from

those springs.”   The named defendants include San Antonio and

numerous other governmental and private entities.




     4
        Sierra Club v. Babbitt, No. 94-50260 (5th Cir. Oct. 18,
1995), at 6.
     5
        Act of May 30, 1993, 73d Leg., R.S., ch. 626, 1993 Tex.
Gen. Laws 2355, as amended by Act of May 29, 1995, 74th Leg.,
R.S., ch 261, 1995 Tex. Sess. Law Serv. 2505.
     6
         See 16 U.S.C. § 1538(a)(1)(B).

                                 4
     In 1993 the Texas Legislature enacted the Edwards Aquifer

Act, creating a regulatory scheme to control and manage the use

of the aquifer.    An administrative body, the Edwards Aquifer

Authority, was created to oversee this regulatory scheme.      A

state district court ruled the Act unconstitutional, but in 1996

the Texas Supreme Court unanimously upheld the facial

constitutionality of the Act.    Barshop v. Medina County

Underground Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996).

The federal district court, in the Babbitt case, recognized that

if the Texas Supreme Court were to uphold the constitutionality

of the Edwards Aquifer Act, “this Court would do everything in

its power to allow the [Authority] to function and nothing that

would frustrate the [Authority].”

     Shortly after the present suit was filed the Texas Supreme

Court ruled in the Barshop case.       San Antonio and other

defendants moved to dismiss the suit on Burford abstention

grounds.    The Sierra Club moved for a preliminary injunction.

After a one-day evidentiary hearing, the court denied the motion

to dismiss and entered the preliminary injunction now on appeal.7

The court concluded that “an emergency presently exists and takes

of endangered species are occurring,” and that “[w]ithout a

fundamental change in the value the region places on fresh water,

a major effort to conserve and reuse Aquifer water, and

implemented plans to import supplemental supplies of water, the


     7
          This court has stayed the injunction pending appellate
review.

                                   5
region’s quality of life and economic future is imperiled.”    The

court incorporated by reference a “1996 Emergency Withdrawal

Reduction Plan,” which provides for comprehensive regulation of

pumping from the aquifer.

     In its order granting the injunction the court did not

immediately impose the Emergency Withdrawal Reduction Plan, but

did order limitations on pumping based on spring flows, the

effect of which was that the municipal defendants were limited to

water use of 1.2 times their winter usage.   The court found that

the Edwards Aquifer Authority “has a great learning curve to

overcome before it is ready to manage the Aquifer.”   It ordered

that the injunction remain in effect until the defendants can

demonstrate that a critical management plan by the Edwards

Aquifer Authority that will preserve endangered species is

operative.   It also ordered the parties to supply the court and a

special master with monthly water usage information and all other

information “necessary to keep the Court informed as to

compliance with this Order.”

                            DISCUSSION

     The party seeking a preliminary injunction must establish:

(1) a substantial likelihood of success on the merits, (2) a

substantial threat that failure to grant the injunction will

result in irreparable injury, (3) that the threatened injury

outweighs any damage that the injunction will cause the opposing

party, and (4) that the injunction will not disserve the public




                                 6
interest.8      The decision to grant or deny a preliminary

injunction is reviewed for abuse of discretion.9      Likewise, we

generally review abstention decisions under an abuse of

discretion standard.10

     The Sierra Club contends that the district court’s decision

not to abstain under Burford is not properly before us on appeal,

but we find no merit to this argument.11     The issue before us is

not the ultimate question of whether the district court should

abstain, but whether the court properly entered a preliminary

injunction.      The latter question turns on whether the Sierra Club

     8
          Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.
1991).
     9
          Id.
     10
       American Bank and Trust Co. of Opelousas v. Dent, 982
F.2d 917, 922 n.6 (5th Cir. 1993).
     11
       The Sierra Club argues that an order denying abstention
is not appealable under Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271 (1988), and that the defendants are
attempting an “end run” around this rule by treating their
abstention argument as an appeal of an order granting an
injunction. There is no merit to this argument. Whether the
court should have abstained goes directly to whether the
plaintiff was likely to succeed on the merits. The defendants
are entitled to raise this argument in this interlocutory appeal
of the injunction, which is plainly allowed under 28 U.S.C. §
1292(a)(1). Gulfstream did not involve an injunction. It was an
attempt to appeal the denial of a motion to stay or dismiss on
abstention grounds. The Sierra Club also cites Doran v. Salem
Inn, Inc., 422 U.S. 922, 930 (1975), which states that “the
issuance of a preliminary injunction is not subject to the
restrictions of Younger.” This case is inapposite because it was
not discussing whether the refusal of a court to abstain is
immediately appealable. The quoted passage was part of a
discussion of whether Younger v. Harris, 401 U.S. 37 (1971),
applies to a plaintiff who has not yet been subjected to state
criminal proceedings, to which the Court’s answer was no. The
case did not discuss Burford abstention, nor did it discuss
appealability of an abstention ruling.

                                    7
established a substantial likelihood of success on the merits in

the face of the Burford abstention doctrine.

     The Sierra Club 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 Burford.   In Burford, plaintiff Sun Oil brought a federal

suit challenging a Texas Railroad Commission order granting a

drilling permit to defendant Burford.      Sun Oil claimed the permit

violated its due process rights.       The Court held that the federal

district court should have abstained, noting the comprehensive

nature of the state regulatory scheme, the large interest of the

state in regulating and conserving its oil and gas resources, and

the need for a unified approach to granting permits by a single

adjudicatory body.

     Factually, Burford and our case are very similar.       In

Burford, the Court emphasized the elaborate and comprehensive

nature of the state regulatory scheme in issue.      It described the

Railroad Commission order under consideration as “part of the

general regulatory system devised for the conservation of oil and

gas in Texas,” noted that the Commission “carries out its

functions of production control or proration by an elaborate

system of orders, schedules, and reports,” and that the state

regulatory scheme provided a “well organized system of regulation

and review.”12



     12
          319 U.S. at 318, 320 n.12, 327.

                                   8
     Similarly, the Edwards Aquifer Act can fairly be

characterized as a comprehensive regulatory scheme.    It

represents a sweeping effort by the Texas Legislature to regulate

the aquifer, with due regard for all competing demands for the

aquifer’s water.   The Act vests the Edwards Aquifer Authority

with “all the powers and privileges necessary to manage,

conserve, preserve, and protect the aquifer . . . .”    The

Authority controls withdrawals from the aquifer through a permit

system.   Section 1.25 of the Act charges the Edwards Aquifer

Authority with developing “a comprehensive water management plan

that includes conservation, future supply, and demand management

plans.”   The Act also 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.”   The Authority is empowered to file civil

suits in state district court for an injunction.   In addition, a

separate entity, the Texas Natural Resource Conservation

Commission, is authorized under § 1.39 of the Act to file suit

for an order of mandamus against the Authority to compel the

Authority to perform its duties.

     Burford emphasized that the state regulatory scheme in issue

concerned the “very large” interest of the state in conserving

oil and gas, and that the Railroad Commission’s regulation of oil

and gas production was “of vital interest to the general public .




                                   9
. . with implications to the whole economy of the state.”13      The

regulation of water resources is likewise a matter of great state

concern.     As the Texas Supreme Court stated in Barshop,

“[c]onservation of water has always been a paramount concern in

Texas, especially in times, like today, of devastating

drought.”14     It characterized the Edwards Aquifer as “the primary

source of water for residents of the south central part of this

state.     It is vital to the general economy and welfare of the

State of Texas.”15      The court recognized that “the State has the

responsibility under the Texas Constitution to preserve and

conserve water resources for the benefit of all Texans.”16      The

Texas Legislature, speaking through § 1.01 of the Edwards Aquifer

Act, found that the aquifer “is a unique and complex hydrological

system, with diverse economic and social interests dependent on

the aquifer for water supply.”

     The defendants correctly note 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.17

     13
          Id. at 320, 324-25.
     14
          925 S.W.2d at 626.
     15
          Id. at 623.
     16
          Id.
     17
       The defendants separately argue that applying the
Endangered Species Act to these circumstances is beyond the power
of Congress to regulate interstate commerce and therefore
unconstitutional. The United States has urged that we not reach
this issue unless, all other appellate challenges to the

                                    10
     The record in this case also illustrates the vital

importance of the aquifer to the citizens of central Texas.     For

example, the president of the San Antonio Water System testified

that the injunction’s limitation of water use to 1.2 times

average winter use would likely require the city to maintain

lower water pressure than state law requires for fighting fires.

A consulting engineer for the City of Leon Valley testified that

the restrictions would necessitate the complete curtailment of

outside watering, resulting in damage to 50% of the foundations

in the city with damages to each home ranging from $2000 to

$20,000.    Other defendants offered similar evidence through

affidavits.

     As 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.    The Court in

Burford noted that for many reasons “each oil and gas field must

be regulated as a unit,” that well spacing and proration “are a

part of a single integrated system and must be considered

together,” and that “[t]he state provides a unified method for

the formation of policy and determination of cases by the

Commission and by the state courts.”18    The Court stressed the

need for unitary enforcement of the regulatory scheme by noting

the problem of drainage:    “Since the oil moves through the entire


temporary injunction being first rejected, it becomes necessary
to do so in order to resolve this appeal. We do not reach any
constitutional issue.
     18
           319 U.S. at 319, 323 n.15, 333-34.

                                  11
field, one operator can not only draw oil from under his own

surface area, but can also, if he is advantageously located,

drain oil from the most distant parts of the reservoir.    The

practice of attempting to drain oil from under the surface

holdings of others leads to offset wells and other wasteful

practices; and this problem is increased by the fact that the

surface rights are split up into many small tracts.”19    The Court

noted that “the physical facts are such that an additional permit

may affect pressure on a well miles away.   The standards applied

by the Commission in a given case necessarily affect the entire

state conservation system.”20

     Similar concerns surely affect regulation of an aquifer.    As

our court stated in the Babbitt appeal:

     [t]he Edwards aquifer contains a finite amount of
     water, and as such, the need for uniform regulation is
     paramount. The Supreme Court has recognized that such
     circumstances sometimes require the federal courts to
     abstain to allow the state’s comprehensive regulatory
     scheme to operate without the risk of competing
     attempts between that regulator and the federal courts
     to exercise control over the same entity.21

The opinion goes on to state that “[a]s with the oil fields at

issue in [Burford], in the present case, Texas clearly has an

interest in uniform decision-making regarding this finite amount

of water.”22


     19
          Id. at 319.
     20
          Id. at 324.
     21
          Opinion at 6 (citing Burford).
     22
          Id. at 6 n.4.

                                  12
     The Sierra Club argues that abstention is not warranted

because it only seeks relief under a federal law, the Endangered

Species Act.     The district court noted in the Babbitt case that

“Burford abstention normally arises in a case in which a federal

court has diversity jurisdiction over exclusively state law

issues.”     Our court has stated that one factor is deciding

whether Burford abstention should apply is whether the cause of

action arises under federal or state law.23

     However, Burford itself states that abstention is

appropriate whether jurisdiction is premised on diversity

jurisdiction or otherwise, if the federal courts should,

consistent with our federal system, afford comity to state

governments in carrying out their domestic policy.     The Court

held:     “Although a federal equity court does have jurisdiction of

a particular proceeding, it may, in its sound discretion, whether

its jurisdiction is invoked on the ground of diversity of

citizenship or otherwise, ‘refuse to enforce or protect legal

rights, the exercise of which may be prejudicial to the public

interest’; for it ‘is in the public interest that federal courts

of equity should exercise their discretionary power with proper

regard for the rightful independence of state governments in

carrying out their domestic policy.’”24    Burford abstention does


     23
       Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314
(5th Cir. 1993).
     24
       319 U.S. at 317-18 (quoting United States ex rel.
Greathouse v. Dern, 289 U.S. 352, 360 (1933) and Pennsylvania v.
Williams, 294 U.S. 176, 185 (1935)).

                                  13
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.”25    Moreover, our case is not distinguishable from

Burford because the cause of action is based on federal law.      In

Burford as well, the cause of action alleged was that the order

of the Railroad Commission had denied plaintiffs “due process of

law.”26    If abstention is warranted when the plaintiff is

claiming a violation of his constitutional rights, then surely it

is also warranted where the plaintiff claims a federal statutory

violation.

     The district court reasoned that abstention was unwarranted

because the Edwards Aquifer Authority had not had time to develop

a plan for managing the aquifer and dealing with the emergency

situation.    The record indicates that the Authority is in the

process of taking comments and formulating rules for permits and

emergency measures.    The State informs us in an amicus brief that

the Edwards Aquifer Authority “is now established and has begun

operations.”    In a supplemental filing San Antonio points out

that on December 19, 1996, the Authority issued final rules for

filing and processing of permit applications, and for critical

period management.

     25
       Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1726
(1996) (quoting McNeese v. Board of Ed. for Community Unit Sch.
Dist., 373 U.S. 668, 674 (1963)).
     26
          319 U.S. at 317.

                                  14
     We do not believe that Burford abstention is applicable only

where the state regulatory scheme is fully in place.   The Supreme

Court has noted that “[w]e have since provided more generalized

descriptions of the Burford doctrine, see, e.g. . . . Colorado

River (abstention where ‘exercise of federal review of the

question in a case and in similar cases would be disruptive of

state efforts to establish a coherent policy with respect to a

matter of substantial public concern’)”.27

     The only significant factual distinction between our case

and Burford -- that the Railroad Commission’s regulatory scheme

in Burford was well established -- is not a sound basis for

concluding that abstention is not warranted here.   The reasoning

of Burford did not turn on the fact that the regulatory scheme

was old, but that it was a comprehensive scheme governing a

matter of vital state interest, and one where uniform application

of rules was important.   These same concerns apply to our case.

     In its brief the Sierra Club defends the injunction by

arguing that it was entered only after the court “was informed

that the [Edwards Aquifer Authority], on the night before the

preliminary injunction hearing, had voted against declaring an

emergency . . . .”   In denying the motion to dismiss on

abstention grounds, the district court noted that “the Edwards

Aquifer Authority voted at its July 31, 1996 hearing that an

emergency did not exist and thus no emergency measures needed to

     27
       Quackenbush, 116 S. Ct. at 1725 (emphasis added; quoting
Colorado River Conservation Dist. v. United States, 424 U.S. 800,
814-16 (1976)).

                                15
be taken . . . .    This Court, based on the documentary and

testimonial evidence heard to date, believes than an emergency

does exist.”    What the court’s action indicates is that it is

willing to abstain as long as the state authority agrees with it.

The purpose of Burford abstention is to discourage such federal

court second-guessing of state regulatory matters.     Burford

abstention is particularly appropriate where “[b]y proceeding the

district court would have risked reaching a different answer than

the [state] institutions with greater interest in and familiarity

with such matters.”28

     The Sierra Club argues that the Edwards Aquifer Act does not

provide any state court judicial review for a plaintiff such as

itself.    The Sierra Club may be correct, since, unlike the

Endangered Species Act,29 there is no express private citizen

cause of action created in the Edwards Aquifer Act for entities

such as environmental groups to seek judicial redress for

statutory violations.    The defendants argue that there is

provision for state court review in the state Act, since §

1.11(h) of the Edwards Aquifer Act provides that the Authority is

subject to the Texas Administrative Procedure Act.30    It is

unclear, however, whether this provision gives a private cause of

action or confers standing on an environmental group like the


     28
          Wilson, 8 F.3d 311 at 315.
     29
          See 16 U.S.C. § 1540(g).
     30
        The Texas Administrative Procedure Act is now codified at
TEX. GOV’T CODE ANN. § 2001.001 et seq. (Vernon Supp. 1997).

                                     16
Sierra Club.    But as explained above, the Edwards Aquifer

Authority is charged with protecting endangered species and is

authorized to file civil suits in state district court for

injunctive relief, and a separate entity, the Texas Natural

Resource Conservation Commission, is authorized to file suit for

an order of mandamus against the Authority to compel it to

perform its duties.

     The Supreme Court has described Burford abstention as

applicable “[w]here timely and adequate state-court review is

available.”31    However, we find no authority that Burford

abstention cannot apply unless the plaintiff himself has a

private, judicial cause of action under the state regulatory

scheme, and the Supreme Court has recently stated that there is

no “formulaic test for determining when dismissal under Burford

is appropriate.”32

     Judge Benavides’ “dissent” — a dissent, not from the

judgment, but from deciding the appeal — treats the Sierra Club

as the possessor of a claim of right rather than one of standing.

The true interest here is that of the public in the preservation

of the fountain darter.    The rationale of Burford abstention is

served by the state’s regulation of this enormous water resource

rather than by the federal court.      At least, that appears to be

true from this preliminary injunction record.     We state no bar


     31
       New Orleans Public Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 361 (1989).
     32
          Quackenbush, 116 S. Ct. at 1726.

                                  17
against the Sierra Club, either in pursuing the merits or in

ultimate efforts to protect the water and darters if the State of

Texas fails to do so.

     The Sierra Club argues that abstention cannot be used to

create “negative preemption,” meaning that a state cannot set up

its own regulatory scheme and then claim that a federal

regulatory scheme should be ignored.       It cites Adams Fruit Co. v.

Barrett.33    In that case the plaintiffs, migrant farm workers,

were injured and received state worker compensation benefits.

They then sued under the federal Migrant and Seasonal

Agricultural Worker Protection Act.34      The Court held that the

state law providing that a worker who receives worker’s

compensation cannot recover any other benefits did not bar the

plaintiffs from pursuing their federal remedy.       It stated that

“we refuse to adopt [defendant’s] ‘reverse’ pre-emption principle

that would authorize States to withdraw federal remedies by

establishing state remedies as exclusive.”35       This case is not

on point since it does not discuss abstention.       The Sierra Club

may be confusing preemption with abstention.

     Regardless, we agree with the Sierra Club that, as a general

proposition, a State should not be able to create a regulatory

scheme and then claim that federal regulation of the same subject

matter does not apply.       In effect it argues the state Act has

     33
          494 U.S. 638 (1990).
     34
          29 U.S.C. § 1801 et seq.
     35
          494 U.S. at 648.

                                     18
“preempted” federal review of its federal claim if the federal

court abstains.    The response to this argument, however, is that

the same thing happens whenever a federal court abstains and the

plaintiff has asserted a federal claim.    This is almost always

the case with Younger abstention,36 where the plaintiff brings

suit in federal court, seeking to enjoin a state proceeding on

grounds that his federal constitutional rights are being

violated.

     Another weakness in the Sierra Club’s “negative preemption”

argument is that the Endangered Species Act cannot fairly be

described as an attempt to preempt all state law related to

conservation and the protection of endangered species.    The Act

itself states:    “It is further declared to be the policy of

Congress that Federal Agencies shall cooperate with State and

Local Agencies to resolve water issues in concert with

conservation of endangered species.”37    The language of the

federal Act does not suggest that abstention is to be avoided in

cases brought under it.

     The Sierra Club also argues that abstention should not apply

because there is no state administrative proceeding underway with

which the federal proceeding is in conflict.    We find this

argument factually and legally unavailing.    Factually, the record

indicates that the Edwards Aquifer Authority has proceeded with

rulemaking for the granting of permits and critical period

     36
          See Younger v. Harris, 401 U.S. 37 (1971).
     37
          16 U.S.C. § 1531(c)(2).

                                    19
management, and has already declined to declare an emergency.

The federal court’s injunction conflicts with these actions.

Legally, Burford abstention does not require the existence of an

ongoing state proceeding with which the federal court action

directly interferes.   This requirement is found with Younger

abstention, which applies “when federal court jurisdiction would

interfere with pending criminal, civil, or administrative state

proceedings,” and requires that “the pending state proceeding

must be ongoing and judicial in nature.”38

     For these reasons, we conclude that the district court erred

in granting the preliminary injunction.   The order granting the

injunction is VACATED.




     38
       Baran v. Port of Beaumont Navigation Dist., 57 F.3d 436,
441 (5th Cir. 1995).

                                20
BENAVIDES, Circuit Judge, dissenting:

     The Burford abstention doctrine applies only “[w]here timely

and adequate state-court review is available.”       New Orleans Pub.

Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350,

361, 109 S. Ct. 2506, 105 L.Ed.2d 298 (1989) (NOPSI).       Because

the administrative scheme enacted by the State of Texas does not

afford adequate judicial review of the Sierra Club’s federal

claim, Burford is inapplicable.    Therefore, I cannot agree with

the majority’s conclusion that “[t]he Sierra Club 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 Burford.”

                                  I.

     When Congress enacted the Endangered Species Act, it

explicitly provided that “any person may commence a civil suit on

his own behalf to enjoin any person ... who is alleged to be in

violation of this chapter or regulation issued under the

authority thereof ....”   16 U.S.C. § 1540(g)(1)(A).     The

appellants acknowledge that the district court had federal

subject matter jurisdiction in this case pursuant to 28 U.S.C. §

1331 and the Endangered Species Act, 16 U.S.C. § 1540(c).39      The

Supreme Court has long recognized that federal courts have a

“virtually unflagging” obligation to exercise the jurisdiction

conferred upon them by Congress.       See, e.g., NOPSI, 491 U.S. at

     39
         The Endangered Species Act provides that “[t]he several
district courts of the United States ... shall have jurisdiction
over any actions arising under this chapter.” 16 U.S.C. § 1540(c).

                                  21
359.    Although this duty is not absolute, abstention is “the

exception, not the rule.”    Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 47

L.Ed.2d 186 (1984).    Specifically, the Supreme Court has recently

emphasized that Burford abstention applies only in a “narrow

range of circumstances.”    Quackenbush v. Allstate Insurance Co.,

— U.S. —, 116 S. Ct. 1712, 1725, 135 L.Ed.2d 1 (1996).

                                 II.

       The Supremacy Clause provides that federal law “shall be the

supreme Law of the Land ..., any Thing in the Constitution or the

laws of any State to the Contrary notwithstanding.”       U.S. CONST.

art. VI, § 2.    The Supremacy Clause makes federal law binding on

the “Judges in every State.”    Id.    Pursuant to this

constitutional provision, state courts are obligated to exercise

judicial review of federal claims properly within their

jurisdiction.

       Abstention involves a federal court’s refusal to exercise

jurisdiction it clearly possesses in favor of a state court’s

exercise of jurisdiction.    Thus, when a federal court abstains in

a case in which a federal question is presented, state courts are

obligated to exercise judicial review of that claim.       If, for

some reason, the state court does not have jurisdiction to review

the federal claim, abstention is inappropriate.     For example,

this court has recognized that Burford abstention is inapplicable

when a federal court has exclusive jurisdiction over the




                                 22
plaintiff’s federal claim.    See Evans v. Dale, 896 F.2d 975, 978-

79 (5th Cir. 1990).

     The Supreme Court has required Burford abstention in only

two cases.   The first, Burford v. Sun Oil Co., 319 U.S. 315, 316-

17, 63 S. Ct. 1098, 87 L.Ed. 1424 (1943), involved a challenge to

the validity of an order of the Texas Railroad Commission.        The

plaintiffs asserted state law claims and argued that the

Commission’s order violated their right to due process of law

under the Constitution.40    Id. at 317.   The Court ultimately

concluded that the federal court should stay its hand because

federal court litigation “threatened the purpose of the complex

administrative system that Texas had established.”     Quackenbush,

116 S. Ct. at 1725 (citing Burford, 319 U.S. at 332).


      40
          The Burford Court repeatedly emphasized that state law
issues were predominant and that the federal constitutional claim
bordered on the frivolous.    See, e.g., id. at 325 (“While the
constitutional power of the Commission to enforce [the challenged
rule] or to make exceptions to it is seldom seriously challenged,
the validity of particular orders from the standpoint of statutory
interpretation may present a serious problem, and a substantial
number of such cases have been disposed of by the Texas courts
which alone have the power to give definite answers to the
questions of State law posed in those proceedings” (citations
omitted)); id. at 328 (“The federal court has been called upon
constantly to determine whether the Railroad Commission has acted
within the scope of statutory authority, while the important
constitutional issues have, as the federal court has repeatedly
said, been fairly well settled from the beginning”).        It is
undisputed, of course, that the Sierra Club has asserted no state
law claims against the appellants. This fact alone distinguishes
the instant case from Burford and suggests that abstention is not
appropriate. Cf. NOPSI, 491 U.S. at 361 (reversing this court’s
application of Burford abstention and noting that the case did not
involve a state-law claim); Wilson v. Valley Elec. Membership
Corp., 8 F.3d 311, 314 (5th Cir. 1993) (holding that “whether the
cause of action arises under federal or state law” is a relevant
factor in assessing the applicability of Burford abstention).

                                  23
       Prior to reaching this conclusion, however, the Court noted

that “judicial review of the Commission’s decisions in the state

courts [was] expeditious and adequate.”      Burford, 319 U.S. at

334.    Essential to this conclusion, moreover, was the fact that

the state courts were available to hear the plaintiffs’ federal

due process claim.    In this regard, the Court specifically noted

that “if the state procedure is followed from the Commission to

the State Supreme Court, ultimate review of the federal questions

is fully preserved here.”    Id.

       Similarly, in Alabama Public Service Commission v. Southern

Railway Co., 341 U.S. 341, 343, 71 S. Ct. 762, 95 L.Ed. 1002

(1951), the plaintiff challenged an order of the Alabama Public

Service Commission under state law and argued that the order

“amounted to a confiscation of its property in violation of the

Due Process Clause of the Fourteenth Amendment.”41      The Court

held that because “adequate review of an administrative order

based upon predominantly local factors [was] available to

appellee, intervention of a federal court [was] not necessary for

the protection of federal rights.”      Id. at 349.   In emphasizing

the adequacy of state-court review of the plaintiff’s federal

constitutional claim, the Court noted that the plaintiff “ha[d]

        41
           The Court noted that its concern was “limited to the
propriety of a federal court injunction enjoining enforcement of a
state regulatory order.”     Id. at 346.      The instant case is
distinguishable from both Burford and Alabama Public Service
Commission because it does not involve an action for injunctive
relief against a state regulatory commission. For this reason,
moreover, the Court’s concern about federal court interference with
state regulatory orders is not implicated by the Sierra Club’s
lawsuit against the appellants.

                                   24
not shown that the Alabama procedure for review of Commission

orders [was] in any way inadequate to preserve for ultimate

review in this Court any federal questions arising out of such

orders.”    Id.

     The majority does not explain its justification for finding

that “adequate state-court review is available.”     NOPSI, 491 U.S.

at 361.    One can only presume that it reaches this conclusion

because “the Edwards Aquifer Authority is charged with protecting

endangered species and is authorized to file civil suits in state

district court for injunctive relief, and a separate entity, the

Texas Natural Resource Conservation Commission, is authorized to

file suit for an order of mandamus against the Authority to

compel it to perform its duties.”     Nonetheless, the majority

concedes that “[i]t is unclear ... whether [the Edwards Aquifer

Act] gives a private cause of action or confers standing on an

environmental group like the Sierra Club.”

     Similarly, the appellants argue that state remedies “afford

timely and adequate review of the Authority’s protection of

endangered species.”    This contention is debatable because the

Act only authorizes, but does not require, the Authority and the

Texas Natural Resource Conservation Commission to protect

endangered species.    In any event, the appellants’ argument

misses the point.

     While it was important that the state administrative schemes

in Burford and Alabama Public Service Commission provided

adequate judicial review of the orders of the state commissions,


                                 25
that was only because the plaintiffs were challenging orders of

the commissions, who were defendants in those cases.    Adequate

review of the commissions’ orders in those cases was a necessary,

albeit insufficient, justification for applying Burford

abstention.   Indeed, the Court relied on the fact that there was

“adequate state-court review” of the plaintiffs’ federal claims.

     Thus, even assuming that Texas’s administrative scheme

provides adequate judicial review of the activity of the

Authority, this does not justify this court’s exercise of Burford

abstention.   First, the adequacy of judicial review of the

Authority’s action is irrelevant in this case because the Sierra

Club is not challenging an order of the Authority.     See note 3

and accompanying text.   Second, adequate review of the

Authority’s decisions does not change the fact that there is no

judicial review of the Sierra Club’s federal claim.

     Adequate state-court review of a plaintiff’s federal claim

is a necessary prerequisite to Burford abstention for two

reasons.   First, as noted, the Supremacy Clause requires state

courts to enforce federal laws.    It would defeat the purposes

underlying that protection for federal courts to abstain in cases

raising federal claims where the state courts do not provide

adequate judicial review of those claims.    Second, adequate

state-court review of a plaintiff’s federal claims is necessary

to ensure that the Supreme Court is able to maintain jurisdiction

over those claims should the state courts fail to provide

sufficient protection for federal rights.


                                  26
                                     III.

     Neither the majority nor the appellants seriously dispute

the Sierra Club’s contention that it cannot bring an Endangered

Species Act claim within the auspices of the Edwards Aquifer

Act.42        Instead, the appellants claim that the “Sierra Club is

free to bring its ESA claims in the State courts of Texas ....”

Assuming this is true, however, the appellants’ argument ignores

the rationale justifying Burford abstention in the first place.

     The Supreme Court has explained that “Burford is concerned

with protecting complex state administrative processes from undue

federal interference.”        NOPSI, 491 U.S. at 362.    Therefore, in an

appropriate case, a federal court must defer to the state court’s

administrative scheme.        In the absence of adequate review of a

plaintiff’s federal claim within that scheme, however, deference

to state courts does not further the policies justifying Burford

abstention.43

     To find authority for the proposition that “adequate state-

court review” must occur within the state administrative scheme,

one need look no further than Burford itself.           There, the Court

          42
          The majority concedes that “[t]he Sierra Club may be
correct, since, unlike the Endangered Species Act, there is no
express private citizen cause of action created in the Edwards
Aquifer Act for entities such as environmental groups to seek
judicial redress for statutory violations.” (citation omitted).
         43
         See McNeese v. Board of Educ. Community Unit Sch. Dist.
187, 373 U.S. 668, 674-75, 83 S. Ct. 1433, 10 L.Ed.2d 622 (1963)
(declining to apply Burford abstention in a school desegregation
case brought pursuant to section 1983 because it was not clear that
state law provided the plaintiffs “with an administrative remedy
sufficiently adequate to preclude prior resort to a federal court
for protection of their federal rights”).

                                      27
explained the need for abstaining in favor of a uniform and

comprehensive scheme of state-court review:



          To prevent the confusion of multiple review of the
     same general issues, the legislature provided for
     concentration of all direct review of the Commission’s
     orders in the State district courts of Travis County.
     The Texas courts have authoritatively declared the
     purpose of this restriction: If an order of the
     commission, lawful on its face, can be collaterally
     attacked in the various courts and counties of the
     state on grounds such as those urged in the instant
     case, interminable confusion would result....
     Concentration of judicial supervision of Railroad
     Commission orders permits the state courts, like the
     Railroad Commission itself, to acquire a specialized
     knowledge which is useful in shaping the policy of
     regulation of the ever-changing demands in this
     field.... The very ‘confusion’ which the Texas
     legislature and the [State] Supreme Court feared might
     result from review by many state courts of the Railroad
     Commission’s orders has resulted from the exercise of
     federal equity jurisdiction.

319 U.S. at 327 (internal quotations and citations omitted).    See

also Alabama Pub. Serv. Comm’n, 341 U.S. at 348 (“Statutory

appeal from an order of the Commission is an integral part of the

regulatory process under the Alabama Code.    Appeals, concentrated

in one circuit court, are supervisory in character.”); NOPSI, 491

U.S. at 374 (Rehnquist, C.J., concurring) (agreeing with the

Court that abstention was inappropriate, but noting that he

“would not foreclose the possibility of Burford abstention in a

case ... [where] the State consolidated review of the orders of

local ratemaking bodies in a specialized state court with power

to hear a federal preemption claim”).

     The Sierra Club’s Endangered Species Act claim cannot be

raised within the scheme that Texas has established to regulate

                               28
Edwards Aquifer water.   In this important sense, then, the

state’s administrative scheme is not uniform and comprehensive in

the same manner the Supreme Court has considered dispositive.      In

fact, “the very confusion” the Burford doctrine seeks to avoid

would result “from review by many state courts” of claims brought

under the Endangered Species Act.      Burford, 319 U.S. at 327.

                                 IV.

     The appellants’ abstention argument amounts to nothing more

than a plea for this court to abrogate its duty to enforce a

federal right granted to private citizens by Congress because

doing so would potentially conflict with important local

interests.44   The Supreme Court has recognized, however, that

Burford “does not require abstention whenever there exists [a

state administrative process], or even in all cases where there

is a ‘potential for conflict’ with state regulatory law or

policy.”    NOPSI, 491 U.S. at 362 (quoting Colorado River Water

       44
            Indeed, Congress recognized that enforcement of the
Endangered Species Act might conflict with important local
interests. See 16 U.S.C. § 1535. Therefore, Congress declared
that “[i]n carrying out the program authorized by [the ESA], the
Secretary [of the Interior] shall cooperate to the maximum extent
practicable with the States.”     Id. § 1535(a).   In this regard,
Congress authorized the Secretary “to enter into a cooperative
agreement ... with any State which establishes and maintains an
adequate and active program for the conservation of endangered
species and threatened species.” Id. § 1535(c).
     Thus, the Endangered Species Act establishes an avenue whereby
states can minimize federal interference.         Nonetheless, the
appellants do not claim to have followed the procedures outlined in
the Act for entering into a cooperative agreement with the federal
government. See id. § 1535(c)(1). Nor do the appellants claim to
have established an “adequate and active program for the
conservation of endangered species” under the Act. See id. These
circumstances render the majority’s deference to the state’s
administrative scheme particularly unwarranted.

                                 29
Conservation Dist., 424 U.S. at 815-16).     More important, the

appellants’ contention is flatly inconsistent with a governmental

system in which federal law is supreme.

     Because the Edwards Aquifer Act does not provide adequate

judicial review of the Sierra Club’s federal claim, I would find

the Burford abstention doctrine inapplicable and would reach the

arguments raised by the appellants with respect to the

extraordinary and extensive order appealed from herein.    For the

foregoing reasons, I respectfully dissent.




                               30
