Environmental Defense Fund, Inc. v. Higginson

No. 78-1135 (D.D.C. November 1, 1978)

In a suit seeking injunctive relief against construction of nine federal water resources projects in the Colorado River Basin pending compliance with the National Environmental Policy Act, the court denies defendants' motion for transfer from the District Court for the District of Columbia to the District Court for the District of Colorado. After first determining that it would be inappropriate to consider the arguments of the intervenors in considering the motion, the court finds the circumstances in this case no different from those in EDF v. Costle, 8 ELR 20782, in which a similar motion was denied. Transfer is contraindicated by the virtual absence of issues of local law in the case, as well as by the fact that defendants have not shown that they will introduce testimony from specific individuals who will be inconvenienced if required to travel to Washington. Further, there appears to be a substantial likelihood that the case will be resolved prior to trial on the basis of motions for summary judgment. The nature of the relief requested by plaintiffs has no bearing on the question of transfer. The court concludes that defendants have failed to make the strong showing necessary to rebut the presumption that the litigation should be conducted in the plaintiffs' choice of forum.

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

Counsel for Defendants
William M. Cohen, David C. Cannon, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2775

[9 ELR 20073]

Flannery, J.:

Memorandum and Order

This matter comes before the court on the defendants' motion to transfer venue in the above-captioned case from this district to the District Court for the District of Colorado. In this suit, the plaintiffs seek declaratory, injunctive, and mandatory relief pursuant to § 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321 et seq. The plaintiffs ask this court to order the defendants to prepare a comprehensive environmental impact statement (EIS) analyzing existing and future water resource projects and operations in the Colorado River Basin. As part of their prayer for relief, the plaintiffs seek to enjoin the construction of nine planned federal water resource projects in the basin pending completion of the comprehensive EIS.

The 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 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.

Under § 1404(a), the defendants have the burden of presenting considerations of convenience and justice that outweigh the clear preference that must be accorded to the plaintiffs' choice of a proper forum. SEC v. National Student Marketing Corp., 360 F. Supp. 284, 294 (D.D.C. 1973). The court is not satisfied that the defendants have met their burden under the statute and in the exercise of its discretion will deny their motion to transfer venue.

When the court heard oral argument on the motion to transfer venue, it indicated that it would consider the arguments of intervening parties with respect to the motion. The court is ruling on the motion to transfer venue before it rules on the petitions to intervene, however, because research into the relevant law has convinced it that intervenors cannot be heard to object to venue. In Commonwealth Edison Co. v. Train, 71 F.R.D. 391 (N.D. Ill. 1976), the court stated:

When a party seeks to enter pending litigation as an intervenor, he enters the litigation subject to the venue which already exists. The purpose of venue is to alleviate the hardship on a defendant arising from his being forced to defend a suit in an inconvenient forum. Such a consideration does not apply to an intervenor.

71 F.R.D. at 394. Accord, Trans World Airlines, Inc. v. CAB, 339 F.2d 56, 63-64 (2d Cir. 1964), cert. denied, 382 U.S. 842 (1965). See generally 3B MOORE'S FEDERAL PRACTICE P24.19 (2d ed. 1978); 7A C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1918, at 608 (1972). In ruling on the present motion, therefore, the court has considered only the submissions of those who presently are parties to the litigation.

The court is not convinced, at least insofar as the "interest of justice" criterion for transfer is concerned, that the present case is distinguishable from Environmental Defense Fund, Inc. v. Costle (CA 77-1436) [8 ELR 20786], in which the court denied a similar motion to transfer venue. In Costle, the plaintiff is bringing suit 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. In moving the court to transfer venue from this district to the District Court for the District of Colorado, the defendants in Costle, citing Gulf Oil Corp.v. Gilbert, 330 U.S. 501 (1947), argued that the suit directly affects the interests of the Colorado River Basin states and therefore should be considered a localized controversy and tried in the locality affected. Further, the defendants maintained that the putatively superior experience of the Colorado court argued strongly for transfer. The court rejected those arguments, stating that its task in Costle was to assess the extent to which the defendants had complied with standards established by Congress in federal water pollution control legislation. It emphasized that "[n]o degree of expertise in local issues is necessary to correctly interpret and apply a federal statute."

This action involves the same river system and affects the same states as Costle and requires the court to construe one of the federal statutes, NEPA, that is at issue in the earlier case. The court finds the arguments for transfer of venue first advanced in Costle no more persuasive in the circumstances of the present action. It, therefore, concludes, as it did in Costle, that justice [9 ELR 20074] would not be served by transferring this suit to the Colorado court.

The defendants stress that the factor of "convenience of parties and witnesses" is relevant to the present suit, whereas it was not a consideration in Costle. In its order denying the motion for transfer of venue in Costle, the court noted:

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.

In the present case, the defendants argue that "witnesses for the federal defendants and for any State or Indian intervenors are likely to be called on the issue of equitable relief." Because these witnesses are located in the basin states, contend the movants, transfer of this case to Colorado is appropriate under the convenience criterion of 28 U.S.C. § 1404(a).

As part of the heavy burden the defendants must bear under § 1404(a) to rebut the clear presumption in favor of the plaintiffs' chosen forum on the ground of convenience, they must do more than allege that certain witnesses will testify; the defendants must state who those witnesses will be and what their testimony will cover. Clay v. Overseas Carriers Corp., 61 F.R.D. 325, 330-31 (E.D. Pa. 1973). See generally 15 C. WRIGHT, A. MILLER, AND E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3851, at 270-74 (1976). But in the memorandum in support of their motion, the defendants state only that the "witnesses include the numerous employees in the regional offices of the Department of Interior's various agencies that were directly involved with the projects and with the research and writing of the site-specific environmental impact statements." The defendants' affidavit similarly fails for lack of specificity: it lists a number of important federal employees working in the basin states, but fails to say whether the defendants intend to call these individuals to testify and gives no indication of what testimony they would give if they were called. It is not possible for the court to determine from such a conclusory affidavit whether the convenience of potential witnesses would be served by the transfer of venue of this action to Colorado.

The court notes that the plaintiffs will be filing a motion for summary judgment in this suit. A ruling on that motion could obviate the necessity for trial or at least narrow the issues to be tried. As a result, the need for either party to produce witnesses may be eliminated or substantially reduced. The court finds, therefore, that the plaintiffs' choice of forum should not be distrubed on the basis that transfer of venue would serve the convenience of witnesses.

Finally, the defendants suggest that "the extraordinary relief" requested in the instant case distinguishes it from Costle and supports transfer of this suit to Colorado. The defendants do not cite any authority for the proposition that a court must consider the nature of the relief requested in deciding whether to transfer venue. Moreover, the plaintiffs adduce numerous cases where venue transfer motions were denied in suits involving broad injunctive actions. This last argument is a makeweight and adds nothing to the balancing required under 28 U.S.C. § 1404(a).

Therefore, upon consideration of the defendants' motion to transfer venue, and the plaintiffs' opposition thereto, and the court having heard the oral argument of counsel, it is, by the court, this first day of November 1978,

ORDERED that the defendants' motion to transfer venue is denied.

Memorandum and Order

This matter comes before the court on motions to intervene filed by four states and several local entities. In this suit, the plaintiffs seek declaratory, injunctive, and mandatory relief pursuant to § 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321 et seq. The plaintiffs ask this court to order the federal defendants to prepare a comprehensive environmental impact statement (EIS) analyzing existing and future water resource projects and operations in the Colorado River Basin (basin). As part of their prayer for relief, the plaintiffs seek to enjoin the construction of nine planned federal water projects in the basin pending completion of the comprehensive EIS.

Each of the movants seeks intervention as of right under Rule 24(a) of the Federal Rules of Civil Procedure or, in the alternative, permissive intervention under Rule 24(b). The first group of intervenors comprises four of the seven basin states affected by the federal program of water resource development projects: Arizona, Colorado, Nevada, and Wyoming. The second group comprises four local Colorado water districts, one local Nevada water district, and one electrical utility company. The plaintiffs do not oppose intervention by the states, although they suggest that it would be appropriate for the court to impose conditions on the participation of those states admitted as parties to this litigation. Intervention by the second group of entities, whether of right or permissive, is opposed by the plaintiffs. The federal defendants apparently do not oppose the intervention of either group of movants.

The four States of Arizona, Colorado, Nevada, and Wyoming are entitled as of right to intervene in this action. The plaintiffs raise the concern, however, that, as parties, those states might adopt dilatory measures that could impede the prompt resolution of this suit. But, at this point in the litigation the plaintiffs' fears of duplicative discovery and dilatory motion practice are too conjectural to warrant the imposition of conditions upon the intervenors. If future actions by the intervening parties threaten to jeopardize the efficient conduct of the proceedings, the court will consider imposing appropriate conditions upon those parties.

The court will deny the motions filed by the Nevada entity and the Colorado entities to intervene as right in this suit. As in EDF v. Costle, Civil Action No. 77-1436 [8 ELR 20786] (Mem. Op. April 20, 1978), sum. aff'd Appeals Nos. 78-1471, 78-1515, and 78-1566 [8 ELR 20788] (D.C. Cir. 1978), the intervening States of Colorado and Nevada will be able to speak for and represent the interests of the local groups who seek to become parties to this litigation. The fact that the interests of these groups may diverge from those of the federal defendants does not make out a case of inadequate representation under Rule 24(a)(2), because the court has ruled that Colorado and Nevada are entitled to intervene. None of the local Colorado water districts or the local Nevada water district has offered any compelling reason or circumstance, see State of New Jersey v. State of New York, 345 U.S. 369 (1953), in which they differ materially with the positions taken by those intervenors. Therefore, under the doctrine of parens patriae the interests of these five entities are adequately represented in the present suit.

The parens patriae doctrine does not apply to the Utah Power and Light Company, a utility company which supplies a large portion of the total electricity needs of Utah and Wyoming, because it is not a citizen of any State that has moved to intervene in this suit. The company, therefore, is entitled to intervene as of right.

The court in its discretion will deny the motion for permissive intervention under Rule 24(b) filed by the local Nevada water district and the local Colorado water districts. A review of the arguments the local groups propose to advance if they are admitted to this action indicates that they either are cumulative or would be unlikely to help this court resolve the question of the government's compliance with NEPA.

Therefore, upon consideration of the motions to intervene, and the opposition thereto, it is, by the court, This third day of November 1978,

ORDERED that the motions of Arizona, Colorado, Nevada, Wyoming, and the Utah Power and Light Company to intervene as of right are granted; and it is further

ORDERED that the motions of the Colorado River Water Conservation District, Southwestern Water Conservation District, Dolores Water Conservancy District, Tri-County Water Conservancy District, and Las Vegas Valley Water District to intervene as of right or, in the alternative, for permissive intervention are denied.