Environmental Defense Fund v. Costle

No. 77-1436 (D.D.C. December 23, 1977)

In a suit challenging, inter alia, defendants' compliance with federal pollution control laws in approving salinity control plans adopted by states of the Colorado River Basin, the court denies defendants' motion for transfer of the case to the federal district court in Colorado. The two prerequisites to transfer, that venue be proper in the transferee district and that defendants be amenable to service of process in the transferee district, have been satisfied. Defendants have failed, however, to demonstrate that interests of convenience and justice favor transfer and outweigh the plaintiff's preference of locale. The convenience of the parties would not be materially affected by the transfer, and the litigation does not turn on issues of local law to an extent indicating that transfer is appropriate. In light of the considerable discretion conferred upon the trial court when considering motions to transfer, the motion is denied.

Counsel for Plaintiff
William A. Butler
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Defendants
Erica L. Dolgin
Land and Natural Resources Division
Department of Justice, Washington DC 20535
(202) 633-4496

Counsel for Intervenor State of Colorado
David Robbins, Deputy Attorney General
1525 Sherman St., Denver CO 80203
(303) 892-3611

[8 ELR 20782]

Flannery, J.:

This matter comes before the court on defendants' motion for transfer of venue from this district to the district of Colorado. Plaintiff brings this suit in this district to test the adequacy of certain salinity control and water quality plans adopted by the states of the Colorado River Basin and approved by the various regional offices of the Environmental Protection Agency and the Department of the Interior pursuant to the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251 et seq., the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and the Colorado River Basin Salinity Control Act, Pub. L. No. 93-320, 88 Stat. 266 (1974). Defendants concede that venue is proper in this district, but move for the transfer pursuant to 28 U.S.C. § 1404(a), which states:

For the convenience of the 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.

This court has a great deal of discretion in deciding whether to transfer a case under this section. Fine v. McGuire, 433 F.2d 499, 501 (D.C. Cir. 1970). However, there are two prerequisites to the exercise of this discretion. First, venue must be proper in the transferee district. Second, the defendants must be amenable to service of process in the transferee district. Relf v. Gasch, 511 F.2d 804, 807 (D.C. Cir. 1975).

This court is satisfied that both of these prerequisites would be satisfied in the event of a transfer. Venue would be proper in the district of Colorado because the cause of action, at least in part, arose in Colorado since the river runs through Colorado and the approval of some of the state salinity control plans occurred there. 28 U.S.C. § 1391(e)(2). Service could be made on the regional offices pursuant to Federal Rule of Civil Procedure 4(d)(5). The only issue, therefore, is whether the situation presented to the court warrants the discretionary transfer of this case to another district. For the reasons indicated below, the court declines to order such a transfer.

Plaintiff's choice of a proper venue, as in this case, must be given preference, Starnes v. McGuire, 512 F.2d 918, 929 (D.C. Cir. 1974), although it is not entitled to the absolute deference once accorded it. See 1 MOORE'S FEDERAL PRACTICE (2d ed.) 1617-18 (1975). Still, defendants have the burden of presenting considerations of convenience and justice which outweigh this preference. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947); Starnes v. McGuire supra, 512 F.2d at 929. Defendants have failed to sustain this burden in this case.

Convenience was never truly an issue in this dispute. Both parties admit that very few witnesses will be called in this case, and those who are called will probably be expert witnesses. The location of the proceeding will have little effect on such witnesses. Similarly, neither party will be inconvenienced by proceeding with the suit in either district.

The crux of defendants' motion is that the interests of justice require transfer of this case. As indicated earlier, this suit involved salinity standards and water quality controls for the Colorado River. The Federal Water Pollution Control Act and the other acts applicable to the case give the Colorado River Basin states an extensive role in the formulation and enforcement of pollution standards. See W. RODGERS, HANDBOOK ON ENVIRONMENTAL LAW 424-25, 535 (1977). Defendants contend that this level of state participation, plus the fact that the Colorado River is the primary water source for the area, bespeak a state interest so great that this case should be considered a localized controversy and therefore tried in the locality affected. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). However, this suit touches only tangentially on issues of local law. The task before the court is to assess the adequacy of the salinity standards and water quality plans adopted by the states and approved by the federal government against the standards established by Congress in federal water pollution control legislation. No degree of expertise in local issues is necessary to correctly interpret and apply a federal statute. See Pruess v. Udall, 359 F.2d 615, 619 (D.C. Cir. 1965). Since the interests of justice do not seem to support transfer, defendants have failed to shoulder the burden required to justify a transfer of venue under 28 U.S.C. § 1404(a).

Therefore, upon consideration of this motion, the memoranda submitted in support thereof and in opposition thereto, and oral argument thereon, it is, by this court, this 23rd day of December 1977,

ORDERED that the defendants' motion for transfer of venue be, and the same hereby is, denied; and it is further

ORDERED that the parties shall appear before the court for a status call on January 18, 1978 at 9:30 a.m.