Environmental Defense Fund, Inc. v. Armstrong

No. C-72-1057-CBR (N.D. Cal. September 1, 1972)

28 U.S.C. 1391 (e) states that an action "may be brought in any judicial district in which: (1) a defendant in the action resides . . . ." The provision does not require that venue lie in the district in which the defendant who might be most intimately concerned with the subject of the litigation resides. Venue in this case, arising out of the construction of the New Melones Dam, is properly set in the Northern District of California where one of the defendants, unquestionably involved with the project, resides. Further, defendants' assertion in general terms, that it would be in the interest of justice to have the case transferred, does not muster enough support for a transfer under 28 U.S.C. 1404 (a).

Counsel for Plaintiffs
Michael W. Palmer
Thomas J. Graff
Environmental Defense Fund, Inc.
2728 Durant Avenue
Berkeley, California 94704

Counsel for Defendants
David E. Golay Ass't. U.S. Attorney
450 Golden Gate Avenue
San Francisco, California 94102

[2 ELR 20604]

Renfrew, J.

Plaintiffs in this action seek injunctive and declaratory relief for violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. The jurisdiction of the Court is invoked pursuant to 5 U.S.C. § 702 (Review of Agency Action); 28 U.S.C. § 1331 (a) (Federal Question); 28 U.S.C. § 1337 (Regulation of Commerce); 28 U.S.C. § 1361 (Mandamus); and 28 U.S.C. §§ 2201, 2202 (Declaratory Judgment). Plaintiffs herein are the Environmental Defense Fund, a New York corporation with offices in Berkeley and over 4,000 members in California; twelve enterprises engaged in the business of running commercial raft trips for hire on the white-water reaches of the Stanislaus River; two individual plaintiffs, residents of the Northern District, who claim that their use of the river for rafting will be rendered impossible by the New Melones Dam; and one individual plaintiff, a resident of the Eastern District, who owns a gold mining claim which it is alleged the project will destroy. The named defendants are the Secretaries of the Army and Interior, officials of the Army Corps of Engineers, and an official of the Bureau of Reclamation.

The present controversy arises out of the construction of the New Melones Dam by the Army Corps of Engineers. This project contemplates the construction of a 625 foot high rockfill structure on the Stanislaus River at a point approximately 60 miles upstream from the junction of the Stanislaus and San Joaquin Rivers. The dam site is located in the Eastern District. The purported aims of the project include flood control, irrigation, power generation, recreation, downstream fisheries enhancement and water quality control. Plaintiffs contend that because construction of this project and its subsequent operation will have a substantial impact on the environment, defendants must comply with the procedures mandated by the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and properly consider environmental factors in relation to this project. Of particular concern to plaintiffs is that defendants be required to file an environmental impact statement which complies with the mandates of Section 102 (2) (c) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4332 (2) (c). The matter is now before the Court on defendants' motion for a change of venue. Two alternative theories are advanced by the government in support of its motion. The first is that venue does not lie in this district pursuant to the provisions of 28 U.S.C. § 1391 (e). Alternatively, if the Court were to find that venue is proper in the Northern District, defendants would urge that the court transfer the action to the Eastern District under 28 U.S.C. § 1391 (e) which provides:

"A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action."

It is not contended that the cause of action herein arose in this district or that any real property involved in this action is situated in the Northern District of California. Therefore neither 28 U.S.C. § 1391 (e) (2) or (3) are advanced to support the propriety of venue in this district. Plaintiffs claim that venue is proper in this district under both 1391 (e) (1) and (4), while it is defendant's position that venue does not lie here under either of those provisions. As the venue requirements set forth in § 1391 are stated in the alternative, it will satisfy the statutory prerequisites if it be found that venue is proper under either subsection.

The defendants place great reliance on the rationale of Kings County Economic Community Development Association v. Hardin, 333 F. Supp. 1303 (N.D. Cal. 1971) as support for their position. In Kings County, plaintiffs attempted to bring an action under NEPA in the United States District Court for the Northern District of California to compel the Secretary of Agriculture to consider the relationship of certain forms of environmental pollution to a Federal farm subsidy program. The program in question was located in the Eastern District, where all plaintiffs resided.¹ Named as defendants were various officials of the Departments of Agriculture, Interior, and the Federal Water Quality Administration, whose offices were located in the Northern District. The Court there found that the presence of the aforementioned defendants was not sufficient to lay venue in the Northern District under 28 U.S.C. § 1391 (e). The defendants urge this Court to accept the rationale of the Kings County decision and find that venue is not proper in this case, as Colonel Love, the only named defendant residing in the Northern District, is merely an "intermediary" in the chain of command.

Our reading of Kings County would not mandate such a conclusion. There the court apparently found that the two individual defendants who resided in the Northern District did not have even minimal contact with the subject matter of the action.² Such is clearly not the case in this present action. Colonel Love is unquestionably involved with the New Melones Dam project, and particularly with those aspects of the project which are the subject [2 ELR 20605] of this lawsuit. As the Division Engineer he is charged with supervisory and review responsibilities concerning compliance with NEPA standards and the preparation of NEPA impact statements for the New Melones Dam project. The administrative guidelines of the Corps of Engineers explicitly detail these responsibilities.³

In response to these facts, the government argues that the District Engineer, one Colonel Donovan,⁴ is the person primarily responsible for initial preparation of the NEPA impact statement. As the statement is initially prepared by Colonel Donovan and his staff, and final approval is made in Washington, it is suggested that Colonel Love's role in the NEPA process is solely one of review and comment. The thrust of the argument is that Colonel Love is merely an intermediary in the process who is responsible neither for the preparation nor the ultimate decision as to the content of the impact statement. While the Court does not agree with the government in its assessment of Colonel Love's position in this process,⁵ it is not necessary to undertake a detailed examination of who is the most responsible person involved in the NEPA process in relation to this project. 28 U.S.C. § 1391 (e) states that an action of this nature "may be brought in any judicial district in which: (1) a defendant in the action resides, * * *." There is no requirement that a determination be made as to whether there are other defendants who might be more intimately concerned with the project in question who reside in other districts. If the government approach was carried to its logical extreme, it would appear that once again all actions of this nature would have to be brought in the United States District Court for the District of Columbia, for it is there that the defendants with final authority in the matter reside.⁶ This certainly was not the result envisioned by Congress in enacting 28 U.S.C. § 1391. If Colonel Love were not properly named as a defendant in this action,⁷ he could move for a dismissal of the claim against him, and venue would no longer lie in the Northern District were a dismissal granted. But once it is determined that Colonel Love is properly named as a defendant and that he resides in this district, then venue is properly found here. The type of considerations pressed by the government, e.g., degree of relationship of various defendants with the project, location of the project, number of defendants who reside in each judicial district, are more properly addressed to the question of whether a transfer should be made to another district "for the convenience of parties and witnesses, in the interest of justice * * *" (28 U.S.C. § 1404 (a)). That is a separate question from the issue of whether venue is proper in this district under 28 U.S.C. § 1391 (e). Colonel Love is unquestionably a proper defendant to this action, and his presence as a defendant is sufficient to satisfy the venue requirements of 28 U.S.C. § 1391 (e).

The Determination that venue is proper in this district under 28 U.S.C. § 1391 (e) (1) makes it unnecessary to reach the further question of whether "real property is involved" in this case within the meaning of that phrase as it is used in 28 U.S.C. § 1391 (e) (4). However, it should be noted that the government's reliance on Kings County, supra, as support for their position that real property is involved in this action is misplaced. In that case plaintiffs were residents of the Eastern District, which was also the location of the project in question. As no plaintiff was a resident of the Northern District, where they sought to bring the action, the provisions of 28 U.S.C. § 1391 (e) (4) were not available as a basis for venue in the Northern District. That is not the situation in the present case, however, as two individual plaintiffs reside in this district.⁸

The final issue for consideration is whether the action should be transferred under the provisions of 28 U.S.C. § 1404 (a)⁹ to the United States District Court for the Eastern District of California. The plaintiffs have made a detailed showing that the cost and inconvenience of maintaining this litigation would be greatly increased were the case to be transferred to the Eastern District. While the defendants have urged in general terms that it would be [2 ELR 20606] in the interest of justice for this case to be transferred, they have failed to demonstrate any criteria other than location of the project, which would support a transfer. While this is certainly a factor to be weighed in the balance, it would appear that the ends of justice would be best served by having the present action remain in this district.

Motion denied.

In accordance with the foregoing memorandum of decision, IT IS HEREBY ORDERED that defendants motion for change of venue be, and the same hereby is, denied.

1. Since all plaintiffs were residents of the Eastern District, venue could not be properly based on 28 U.S.C. § 1391 (e) (4) which states, inter alia, that the action may "be brought in any judicial district in which * * * (4) the plaintiff resides if no real property is involved in this action" (28 U.S.C. § 1391 (e)). Therefore the issue of whether real property was involved in the case was not properly before the district court in that case.

2. After describing the liberalizing purpose of amending the general venue statute in 1962 to include 28 U.S.C. § 1391, Kings County v. Hardin, 333 F. Supp. 1303, 1304 (N.D. Cal. 1971) The court concluded that venue is still limited to a district with some minimal contact with the subject matter and parties in an action. While it is not specified what relationship the two defendants residing in the Northern District bore to the action, it must be assumed that Judge Wollenberg found that they did not have the "minimum contact" necessary to establish venue. There is no indication that the Court there used the type of balancing test which defendants in this action suggest this Court should adopt to determine if venue be proper under 28 U.S.C. § 1391 (e).

3. The Corps of Engineers' administrative guidelines concerning preparation and coordination of environmental statements, as set forth in ER 1105-2-507, provides, inter alia, that:

* * *

4. Policy. In formulating plans for Federal water resource development or management activities, impact on the environment will be fully considered from the initiation of preauthorization planning through post-authorization planning and design, construction, and operation and management. Early and continuing coordination with appropriate local, State, and Federal agencies and the interested public, will be accomplished to develop, analyze, and consider all reasonable and feasible alternatives and measures which will enhance, protect, preserve, and restore the quality of the environment or, at least, minimize and mitigate to the extent possible unavoidable deleterious effects and to analyze and study the environment together with technical, economic, social, and other considerations to insure balanced decision making in the total public interest. Preparation of the environmental statement required by section 102(2)(C) of the Act will constitute an integral part of the interdisciplinary planning process and will serve as a summation and evaluation of the effects that alternative actions would have on the environment and as an explanation and objective evaluation of the finally recommended plan.

* * *

c. Compliance and review. Prior to forwarding, environmental statements (including comments and views of agencies, groups, and the public) will be carefully reviewed by District and Division Engineers to insure that:

(1) The statement fully satisfies the requirements of this regulation and the references cited herein.

(2) The project or proposal described in the statement is fully consistent with the policies enunciated in the National Environmental Policy Act, ER 1165-2-500, and other pertinent directives that have implemented the Act.

d. Further guidance. If after taking all measures within his authority, the District or Division Engineer is unable to satisfy the requirements of c above, Compliance and Review, he will report the matter to HQDA (DAEN-CWZ-C) WASH DC 20314, and request the necessary authority or guidance.

* * *

8. Budget submission data. The time requirements for the filing of final environmental statements, prepared and coordinated in accordance with section 102(2)(C) of the Act, have been established with a view to meeting, to the maximum extent, the requirements specified by the Council on Environmental Quality. (See paragraph 10 (c) of the CEQ "Guidelines".)

a. Requests for initiation of construction and land acquisition. For budget recommendations in this category, final environmental statements must have been filed with the CEQ prior to 1 September of the calendar year in which the budget is being submitted by Division and District Engineers.

* * *

d. Listings. The annual budget recommendations of Division Engineers will provide a listing of projects recommended in each budget category indicating the time of actual or scheduled submission of the final environmental statements to the CEQ.

* * *

10.e. Public Review. News releases concerning draft and final environmental statements District Engineers and the office, Chief of Engineers will be given as wide a coverage as deemed sufficient to accomplish the purpose of this directive and the intent of paragraphs 6a (vii) and 10 of the "Guidelines" of the CEQ. When significant environmental impacts or public concern have become apparent subsequent to the last public meeting, reporting officers will notify the Division Engineer of the facts and issues involved and request a decision as to whether a public meeting should be held prior to or during coordination of the statement.

4. Colonel Donovan resided in Sacramento, which is in the Eastern District.

5. From our reading of the guidelines of the Corps of Engineers (see fn. 3, supra), it would appear that Colonel Love is indeed an essential figure in the preparation of the environmental impact statement.

6. As Judge Wollenberg's excellent discussion of the purpose of this statute in Kings County Development v. Hardin, 333 F. Supp. 1303, 1304, (N.D. Cal. 1971) indicates, this is one of the very problems which the statute was intended to remedy.

7. We hold here, however, that Colonel Love is a prpoer party.

8. The only authority presented which bears directly on this issue is Environmental Defense Fund v. Corps of Engineers of U.S. Army, 325 F. Supp. 728 (E.D. Ark. 1971). There the court confronted the question of whether in a dispute concerning compliance with the provisions of NEPA, the fact that the project in question was a dam made it an action "in which real property is involved" within the meaning of 28 U.S.C. § 1391. The Court found that real property was not involved in the action, as it was compliance with a statutory procedure, not the physical project, which was the primary subject of the law suit.

9. "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought" (28 U.S.C. § 1404 (a)).