Environmental Defense Fund, Inc. v. Corps of Eng. of US Army, LR-70-C-203.

Citation325 F. Supp. 728
Decision Date21 January 1971
Docket NumberNo. LR-70-C-203.,LR-70-C-203.
PartiesENVIRONMENTAL DEFENSE FUND, INC., the Ozark Society, Ark. Audubon Society, Inc., Ark. Ecology Center, Pratt Remmel, Jr., and Russell Harper, Plaintiffs, v. CORPS OF ENGINEERS OF the U. S. ARMY, Stanley R. Resor, Sec'y of the Army, and Gen. Frederick B. Clarke, Chief of Engineers, Corps of Engineers of the U. S. Army, Defendants.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas

COPYRIGHT MATERIAL OMITTED

Richard S. Arnold, Arnold & Arnold, Texarkana, Ark., Edward Lee Rogers, Stony Brook, N. Y., for plaintiffs.

W. H. Dillahunty, U. S. Atty., Little Rock, Ark., for defendants.

Memorandum Opinion No. One November 16, 1970.

Memorandum Opinion Nos. Two and Three December 22, 1970.

Memorandum Opinion No. Four January 21, 1971.

MEMORANDUM OPINION NUMBER ONE

EISELE, District Judge.

The defendants have filed a Motion to Dismiss for Improper Venue for the following reasons:

"* * * the project sought to be enjoined by the plaintiffs is wholly within the Western District of Arkansas; the District Engineer's office in charge of the proposed project is located in Tulsa, Oklahoma, and performs no work within the Eastern District of Arkansas, and the property involved * * * lies within the Western District of Arkansas."

The complaint names the Corps of Engineers of the United States Army as a defendant along with Stanley R. Resor, Secretary of the Army, and General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of the United States Army. It purports to set forth nine separate causes for equitable relief. The principal objective is to enjoin the making of any contract or the doing of any work in furtherance of the plan of the defendants to construct a dam across the Cossatot, a river located entirely within the Western District of the state of Arkansas. Although preliminary work appears already to have been performed on the over-all project, the construction of the dam, known as "Gillham Dam," has not yet commenced. In fact, no bids have been received or contracts awarded for the construction of the dam proper. Plaintiffs wish to keep the Cossatot as a free-flowing stream.

As the basis for their complaint the plaintiffs rely upon the Fifth, Ninth and Fourteenth Amendments to the United States Constitution, and also rely upon various statutes enacted by the United States Congress, including: 42 U.S.C. § 1983; 42 U.S.C. § 4331 (the National Environmental Policy Act of 1969); 16 U.S.C. § 661 et seq. (the Fish and Wildlife Coordination Act of 1934); Public Law 91-224, Title II, 84 Stat. 114 (the Environmental Quality Improvement Act of 1970); 33 U.S.C. § 540; 43 U.S.C. § 390b (the Water Supply Act of 1958); 33 U.S.C. § 701a; 33 U.S.C. § 466a (the Clean Water Restoration Act of 1966); and 16 U.S.C. § 1271 et seq. (the Wild and Scenic Rivers Act).

The plaintiff Environmental Defense Fund, Inc. (EDF), is a non-profit, public-benefit membership corporation organized under the laws of the state of New York. The plaintiff Ozark Society, the plaintiff Arkansas Audubon Society, Inc., and the plaintiff Arkansas Ecology Center are all non-profit membership organizations established under the laws of Arkansas. The principal offices of the Ozark Society and the Arkansas Audubon Society are located in cities in the Western District of Arkansas. The principal office of the Arkansas Ecology Center is located at Little Rock in the Eastern District of Arkansas, Little Rock Division. Plaintiff Pratt Remmel, Jr., is a resident of Little Rock. Plaintiff Russell Harper resides at Gillham, Arkansas, in the Western District, and allegedly owns land on both sides of the Cossatot below the proposed dam site.

The plaintiffs seek to bring this suit as a class action under Rule 23.

The complaint does not state the residence of Stanley R. Resor, Secretary of the Army, or of General Frederick B. Clarke, Chief of the Corps of Engineers, but it is assumed that each resides in or around Washington, D. C., and, in any event, not within the Eastern District of Arkansas. The Complaint alleges that each of the defendants maintains an office in the Federal Office Building located at Little Rock, Arkansas, within the Eastern District of Arkansas.

Jurisdiction is predicated on 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. § 1343(3) (civil rights); 28 U.S. C. § 1361 (mandamus); and 28 U.S.C. §§ 2201-2 (declaratory judgments). Venue is alleged to exist by virtue of 28 U.S. C. §§ 1391(b) (jurisdiction not founded solely on diversity) and 1391(e) (1), (4) (actions against agencies, officers, and employees of the United States).

Although, as noted, plaintiffs allege venue under 28 U.S.C. § 1391(b), they rely in their brief solely upon § 1391(e). That section of the Judicial Code 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."

Plaintiffs contend that venue is proper in the Eastern District of Arkansas for two independent and equally sufficient reasons: (1) that the Corps of Engineers of the United States Army resides here in every sense in which an agency of the United States can reside anywhere (it is admitted that the Corps of Engineers maintains an office in Little Rock which, however, does not have jurisdiction over the Gillham Dam project. That project is under the jurisdiction of the Corps's Tulsa office); and (2) that at least two of the six plaintiffs reside in the Eastern District of Arkansas.

The defendants contend, first, that the Corps of Engineers is not a "suable entity" and therefore can not be a resident of any district, and secondly, that this is an action involving real property and, therefore, should be brought either where the individual defendants reside or in the Western District of Arkansas where the real property is situated. The plaintiffs argue that there is no "real property involved" in this action as is contemplated by § 1391(e) (3) or (4). They cite the legislative history of § 1391(e) which, they contend, restricts the concept of "real property involved in the action" to actions concerning the title to government lands or other legal interests therein.

In the opinion of the Court the question raised is not only novel but very close. On balance, the Court concludes that venue in the Little Rock Division of the Eastern District of Arkansas is proper, and, therefore, the motion of the defendants to dismiss for improper venue will be overruled.

The Court is not impressed with the plaintiffs' argument that the Corps of Engineers "resides" here in Little Rock, Arkansas, arguing by analogy to the concept of the residence of a business corporation for venue purposes. Nor does it appear that the plaintiffs can sue the Corps of Engineers unless, indeed, § 1391 (e) is itself interpreted to confer such authority and, in effect, to waive the principle of sovereign immunity with respect to all "agencies" of the United States. Such does not appear to have been the intent of § 1391(e).

The Court is of the opinion that this is not an action in which "real property is involved" in the sense contemplaetd by § 1391(e) (4). There is nothing that needs to be done to accomplish the objectives of the plaintiffs which can not be as readily done by this Court as that which could be done by, say, the District Court in Washington, D. C., had the plaintiffs filed there as permitted by § 1391. Indeed, if the plaintiffs here were limited to individual citizens residing in the Eastern District of Arkansas, it is very doubtful, in the Court's opinion, that venue would lie in the Western District because no "real property involved in the action," under the Court's analysis, is situated there. Nothing needs to be done in this action with respect to the real estate under and adjacent to the Cossatot or upon which defendants contemplate constructing the Gillham Dam. The action does not put in issue the title to, or possession of, such lands, or any interest therein.

Section 1391(e), enacted in 1962, was intended to liberalize the venue requirements. It should be interpreted to effectuate this objective.

There is one problem, not mentioned by the parties, which should be pointed out. Section 1391(e) (4) mentions "the plaintiff." Here at least one of the plaintiffs resides in New York state. In order to give the section the effect which the Court has given to it in its analysis above, the word "the" must be read as "a" or "one or more." The Court can think of no objective which the Congress might have had in limiting 1391(e) (4) to either single-plaintiff cases or to only those multiple-plaintiff cases where all of such plaintiffs reside in the judicial district of the forum.

The motion to dismiss will be overruled and the plaintiffs' motion for a preliminary injunction is set for a hearing at 9:30 a. m. Tuesday, November 24, 1970.

MEMORANDUM OPINION NUMBER TWO

This is the second memorandum opinion in this proceeding, the first having been filed on November 16, 1970, with respect to the venue issue.

The matter now before the Court is the defendants' motion to dismiss, filed November 24, 1970, the date upon which the plaintiffs' application for temporary injunctive relief was heard.1

Defendants' motion is based upon the Court's alleged lack of jurisdiction over the defendants and the subject matter, and also asserts that the various plaint...

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