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Kentuckians for the Commonwealth, Inc. v. Rivenburgh

Citation: 32 ELR 20364
No. No. Civ.A.2:01-0770, 204 F.R.D. 301/(S.D. W. Va., 11/21/2001)

The court denies a U.S. Army Corps of Engineers' motion to change venue in an environmental group's suit against it for violating the Clean Water Act (CWA) §404 by authorizing a surface mining company to fill streams with waste rock under a nationwide permit and without an environmental impact statement. The court first holds that the venue transfer rules require the court to balance two factors: convenience and justice. The convenience of the parties and witnesses, either court's knowledge of the issue, and local interest are not determinative. The chosen forum of the Southern District of West Virginia, however, is the where the Corps' regional office is located, where the Corps' decisions applying federal law are made, and where the decision to grant the contested CWA §404 permit was made. Further, the locus of decisionmaking is a reasonable and fair venue to determine these federal issues. Moreover, a single determination can be made in the chosen forum concerning the Corps' application of federal law to all five states in the region. When the group's choice of forum is added to this scale, it plainly tips in favor of the Southern District of West Virginia. The court next holds that a property owner and a coal industry association are allowed to intervene because both have interests affected by the litigation, but those interests are not adequately represented by the defendants who are regulators.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-419).

Counsel for Plaintiff
James M. Hecker
Trial Lawyers for Public Justice
1717 Massachusetts Ave. NW, Ste. 800, Washington DC 20036
(202) 797-8600

Counsel for Defendants
Ruth Ann Storey
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000