Defenders of Wildlife v. Jewell

• Decision Date: 26 November 2013
• Docket Number: No. 2:13-00039,2:13-00039
• Parties: DEFENDERS OF WILDLIFE, SIERRA CLUB, STATEWIDE ORGANIZING FOR COMMUNITY EMPOWERMENT, AND TENNESSEE CLEAN WATER NETWORK, Plaintiffs, v. SALLY JEWELL, Secretary, U.S. Department of the Interior; DAN ASHE, Director, U.S. Fish and Wildlife Service; U.S. FISH AND WILDLIFE SERVICE; JOSEPH PIZARCHICK, Director, U.S. Office of Surface Mining, Reclamation, and Enforcement; U.S. OFFICE OF SURFACE MINING, RECLAMATION, AND ENFORCEMENT, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

DEFENDERS OF WILDLIFE,SIERRA CLUB,STATEWIDE ORGANIZING FOR COMMUNITY EMPOWERMENT,AND TENNESSEE CLEAN WATER NETWORK, Plaintiffs, v. SALLY JEWELL, Secretary, U.S. Department of the Interior;DAN ASHE, Director, U.S. Fish and Wildlife Service;U.S. FISH AND WILDLIFE SERVICE;JOSEPH PIZARCHICK, Director,U.S. Office of Surface Mining, Reclamation, and Enforcement;U.S. OFFICE OF SURFACE MINING,RECLAMATION, AND ENFORCEMENT, Defendants.

No. 2:13-00039

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION

Dated: November 26, 2013

Judge Sharp

MEMORANDUM

This litigation was spawned when a federal agency issued permits to two coal mines allegedly without proper consideration of how wastewater discharges from the mines would impact the blackside dace and the Cumberland darter, two species of fish protected by the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. Defendants now move to transfer this case under 28 U.S.C. § 1404(a) to the Eastern District of Tennessee, where both the mines and the waters in which the fish swim are located. Plaintiffs oppose that motion.

I. BACKGROUND

Plaintiffs are non-profit membership organizations, whose mission, in whole or in part, isto protect the environment. They bring this action on behalf of their organizations, as well as on behalf of their "members who live, work, own property, and/or recreate in and near the Zeb Mountain and Davis Creek Mine Area 5 surface coal mines and the watersheds affected by wastewater discharges from these mines." (Docket No. 37, Am. Comp. ¶ 12). Those mines are located in Scott and Campbell counties, Tennessee, both of which are in the Eastern District.

Defendants include the United States Fish and Wildlife Service ("FSW") which is charged with administration of the ESA and "is the consulting agency when federal actions may affect listed terrestrial or freshwater species and those species' designated critical habitat." (Id. ¶ 14). It maintains an Ecological Services Field Office for the State of Tennessee, in Cookeville, which is in this judicial district.

From its office in Cookeville, the FSW administers the ESA in Tennessee, including formal and informal consultation on the issuance of permits for surface mining by the Office of Surface Mining, Reclamation, and Enforcement ("OSM"), another Defendant in this action.¹ The OSM is charged with administering the Surface Mining, Reclamation, and Control Act of 1977 ("SMRCA"), 20 U.S.C. § 1201 et seq., and it does so for surface coal mines in Tennessee from its Knoxville field office, which is in the Eastern District and from where the permits for the Zeb Mountain and Davis Creek mines were issued.

As between the two, FSW is said to be the "wildlife" or "consulting" agency responsible for administering the ESA, while OSM is said to be the "action" agency, responsible for insuring against jeopardizing listed species when issuing SMRCA permits. Though they have separateresponsibilities, both agencies are alleged to have failed to meet their obligations under the ESA to the protect blackside dace and Cumberland darter from the deleterious effects of surface coal mining wastewater discharges.

Specifically, OSM is alleged to have violated the ESA by issuing the SMRCA permits for the Zeb Mountain and Davis Creek mines, by issuing blackside dace conservation guidelines, by failing to reinitiate consultation with the FSW based on new information, and by arbitrarily relying on a 1996 Biological Opinion to excuse its failure to consult with the FWS. FWS has allegedly violated the ESA by failing to request OSM to reinitiate and complete consultation on the two permits, on the 1996 Biological Opinion, and on the blackside dace conservation guidelines, and allegedly has not met its obligation to develop conservation guidelines for the Cumberland darter. Such omissions have permitted both agencies to ignore mounting evidence that high conductivity² wastewater from surface coal mines harms both species of fish, with the fear being that the Cumberland darter and the blackside dace, a minnow, would be lost.

The Amended Complaint is in eight counts. Among other things, Plaintiffs request an order vacating the two SMCRA permits at issue, vacating the 1996 Biological Opinion and associated "incidental take statement"³ for OSM's Tennessee mining program until OSM has "reinitiated and completed" formal consultation on the effects of its mining programs on protected species, requiring Defendants to "consult" under the ESA over the 2009 Guidelines developed to protect blacksidedace before issuing any new SMCRA permits in Tennessee, and requiring development of guidelines to minimize the incidental take of the Cumberland darter and consultation on existing blackside dace guidelines. (Id. at 27-29, ¶¶ A-G).

II.

Defendants begin by arguing that this Court's connection to the controversy is "attenuated," and "minimal when compared to the Eastern District." (Docket No. 23-1 at 9). They also discuss the applicable venue statutes and raise assorted arguments as to whether the connection to this district is substantial enough, and whether the FSW can be said to "reside" in this district. Inasmuch as the Motion to Transfer is premised exclusively on Section 1404(a), the Court does not understand Defendants to actually be challenging whether venue in this district is proper (even though the parties spend a not insignificant amount of time addressing the issue), but to the extent that they do, this Court disagrees.

Section 1404(a) "'operates on the premise that the plaintiff has properly exercised his venue privilege.'" Kerobo v. SouthWestern Clean Fuels, Corp., 285 F.3d 531, 539 (6^th Cir. 2002) (citation omitted). It is unlike Section 1406 which addresses cases "laying venue in the wrong division or district," 28 U.S.C. § 1406 (a), because it "presuppose[s] that the court has jurisdiction and that the case has been brought in the correct forum." Lafferty v. St. Riel, 495 F.3d 72, 77 (3^rd Cir. 2007).

Civil actions against federal officers and agencies may be brought in "any judicial district in which (A) a defendant in the action resides, or (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action." 28 U.S.C. § 1391(e)(1). This general venue provision is supplemented by the ESA which allows citizen suitsto be filed "in the judicial district in which the violation occurs." 16 U.S.C. § 1540(g)(3)(A).

The parties differ as to whether the FWS can be said to "reside" in this district. Defendants cite cases like Reuben H. Donnelly Corp. v. FTC, 580 F.2d 264 (7^th Cir. 1978), which held that the "residence" of the Federal Trade Commission was in Washington, D.C. even though it maintains regional offices, and like Buckley v. United States, 2013 WL 2242995 (E.D. Tenn. May 21, 2013), which (relying heavily on Donnelly) held that venue in a suit against the United States was not proper in a particular district simply because the United States Attorney had offices in that district. For their part, Plaintiffs claim that those cases, and the others cited by Defendants, simply stand for the proposition that venue under Section 1391(e)(1)(A) does not lie merely because a federal agency has an office in a judicial district; instead, there must be some connection between that office's action and the facts or legal claims that form the basis of the suit.

The Court need not wade into these waters since it is clear that venue is proper within the meaning of Section 1391(e)(B). This is because a substantial part of the events or omissions alleged in the Amended Complaint occurred at the FSW office in Cookeville.

In determining whether a substantial part of the events occurred in a particular district, a court looks "not to a single 'triggering event' prompting the action, but to the entire sequence of events underlying the claim." Astro-Med, Inc. v. Nikon Kohden Amer., Inc., 581 F.3d 1, 12 (1^st Cir. 2009) (citing, First Mish. Corp. v. Bramlet, 141 F.3d 260, 263-64 (6^th Cir. 1998) (applying identical provision in Section 1391(b)(2)). In doing so, the focus is not on the actions of one party, but rather, a "holistic view of the acts underlying a claim." Id. Moreover, venue can be proper, even though another district may have a greater connection to the dispute. See, Adams v. Fed. Bur. of Prisons, 716 F. Supp.2d 107, 113 (D. Mass. 2010); Aland v. Kempthorne, 2007 WL 4365340 (N.D.Ill. 2007).

Here, the "triggering event" may be said to have been the issuance of the permits by the OSM in Knoxville which allowed the mines to operate, which, in turn, allowed wastewater with allegedly high conductivity to pollute the surrounding waterways, which, in turn, allegedly negatively impacted the aquatic habitat of the blackside dace and Cumberland darter, and which, in turn threatens their demise. But Plaintiffs' claims are broader than that, and consist of alleged omissions and commissions by the FWS and the OSM, the merit of which is not now before the Court.

Plaintiffs allege that FWS's Ecological Services Office in Cookeville is the only such office in Tennessee, and is generally responsible for all ESA activities, including administering the consultation requirements of the ESA, drafting regulations to list and delist species under the FWS, implement recovery activities for listed species, and issuing permits for incident take of listed species. Further, with respect to the two species at issue, it is alleged the FSW played a key role in the preparation of a review of the blackside dace, a key role in the development of final rules relating to the Cumberland dater and its critical habitat, and the official administrative record relating to those decisions is said to be in the Cookeville office. Moreover, Plaintiffs claim that the Cookeville office of the FWS "is...