NATURAL RESOURCES DEFENSE COUN., INC. v. Tennessee Val. Auth.

• Citation: 340 F. Supp. 400
• Decision Date: 08 December 1971
• Docket Number: No. 71 Civ. 919.,71 Civ. 919.
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, and Aubrey J. Wagner, Chairman Tennessee Valley Authority, Defendants, National Audubon Society, Inc., Applicant for Intervention.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

340 F. Supp. 400

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, and Aubrey J. Wagner, Chairman Tennessee Valley Authority, Defendants National Audubon Society, Inc., Applicant for Intervention.

No. 71 Civ. 919.

United States District Court, S. D. New York.

December 8, 1971.

COPYRIGHT MATERIAL OMITTED

Richard M. Hall, New York City, for plaintiffs Natural Resources Defense Council and Sierra Club.

William A. Butler, East Setauket, N. Y., for plaintiff Environmental Defense Fund, Inc.

Gifford, Woody, Carter & Hays, New York City, for National Audubon Society, Inc., applicant for intervention.

Robert H. Marquis, Gen. Counsel, T. V. A., Knoxville, Tenn., Mudge, Rose, Guthrie & Alexander, New York City, for defendant T. V. A.

MOTLEY, District Judge.

I. Statement of Facts

This action arises from the alleged practice of the Tennessee Valley Authority (TVA) of purchasing and using strip-mined coal. In general, strip-mining is a practice of extracting coal by removing the covering top and subsoils, depositing them nearby and then removing the coal from the newly exposed surface. According to plaintiffs, strip-mining directly causes severe water pollution, defaces the land, and renders it useless for recreation, wildlife, timber production or living.

Plaintiffs charge that in purchasing and using strip-mined coal, the TVA has failed to comply with the mandates of the recently enacted National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321, et seq., in its planning, decision making, and daily administration. Specifically, it is charged that 1) defendants have failed to comply with § 102(2) (C) of NEPA by failing to prepare, circulate and file the requisite environmental impact statement prior to purchasing and using strip-mined coal; 2) defendants have failed to comply with § 102(1) of NEPA by failing to interpret and administer the TVA Act and regulations in a manner consistent with the policies expressed in NEPA; 3) defendants have failed to comply with §§ 102(2) (C) (iii) and 102(2) (D) of NEPA by failing to develop and describe appropriate alternatives to the purchase and use of strip-mined coal and properly evaluate their purchases in light of such alternatives; and 4) defendants have violated § 102(2) (G) of NEPA by failing to develop and use ecological information in the decision to purchase and use strip-mined coal.

The first cause of action alleges these failures of procedure in planning, decision making and administration with respect to a contract by the TVA for the purchase of coal strip-mined from land not owned by TVA; the second cause concerns similar failures with respect to a purchase of strip-mined coal from land owned by TVA. In both of these counts, plaintiffs seek to have the TVA action in awarding the contracts declared illegal, and to have the defendants enjoined from purchasing any coal under the contracts until the requirements of NEPA are met. The third cause of action relates to the TVA's overall policy of purchasing and using strip-mined coal, and similarly seeks to restrain that policy until the requirements of NEPA are met.

The case is now before the court on defendants' motion to dismiss the complaint. The grounds advanced for dismissal are: 1) improper service of process, 2) improper venue, 3) lack of jurisdiction, and 4) failure to join indispensable parties. For the reasons given below, the court finds all of these grounds insufficient and denies defendants' motion. National Audubon Society, Inc. has moved to intervene, and its motion is granted.

II. Service of Process

Defendants' claim that service of process was improper is totally without merit. Plaintiffs assert, and defendants do not deny, that defendants were duly served by certified mail. Subsection (e) of 28 U.S.C. § 1391 provides that in civil actions "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 ..." service of the summons and complaint on the officer or agency "may be made by certified mail beyond the territorial limits of the district in which the action is brought." That method of delivery is designed to supersede the method specified in Rule 4(d) (5) Fed.R.Civ.P. It is not disputed that TVA is an agency of the United States. The instant action falls within the class of cases described above, so service of process was proper, regardless of whether there is venue in this district. See Brotherhood of Locomotive Engineers v. Denver and Rio Grande R. R. Co., 290 F.Supp. 612, 616 (D.Colo. 1968), aff'd, 411 F.2d 1115 (10th Cir. 1969); Powelton Civic Home Owners Assoc. v. Department of Housing and Urban Development, 284 F.Supp. 809, 833 (E.D.Pa.1968).

III. Venue

Plaintiffs claim venue under 28 U.S.C. § 1391(e), which provides in pertinent part:

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.

Defendants launch a multi-pronged attack on the applicability of this section, contending A) § 1391(e) does not apply to the TVA, B) even if it does, all plaintiffs do not reside within this District, and C) real property is involved in the action.

A) Section 1391(e) provides for venue in actions against agencies of the United States or their officers "... except as otherwise provided by law. ..." Defendants think they have found one of these exceptions in § 8(a) of the Tennessee Valley Authority Act, 16 U.S.C. § 831g. That section states in pertinent part:

The Corporation shall be held to be an inhabitant and resident of the northern judicial district of Alabama within the laws of the United States relating to the venue of civil suits.

The issue apparently one of first impression in this Circuit, is thus whether this language of § 831g amounts to an exception to the general venue requirements of § 1391(e). Both the wording of § 831g and the legislative history of § 1391(e) tend to indicate that it does not.

In its very terms § 831g deals only with the place of inhabitance or residence of the TVA, leaving questions of venue to the appropriate venue statutes. Nor is it unreasonable to assume that Congress included § 831g solely for the purpose of definitively settling TVA's place of residence, in light of the difficulties often posed by the need to determine the residence of public officials and agencies. See 7 Moore's Federal Practice (2d ed. 1970) ¶ 0.144 17. Moreover, where the draftsmen of the TVA Act wanted to create exceptions to the general venue statutes they did so in far more explicit language than appears in § 831g. Thus, 16 U.S.C. § 831x, § 25 of the TVA Act, provides that condemnation proceedings "shall be instituted in the United States district court for the district in which the property interest is located...." When Congress has sought to establish special venue provisions for other special kinds of civil actions, it has spoken in language far more mandatory and specific than the language of § 831g. See generally 1 Moore's Federal Practice ¶ 0.144.

In a recent decision a District Court in the District of Columbia has held § 831g to be an exception to the general venue provisions of § 1391(e). Environmental Defense Fund, et al. v. Tennessee Valley Authority, et al., Civil No. 1615-71 (D.D.C. filed Oct. 13, 1971). That Court concluded that with the TVA Act Congress intended to have suits against TVA brought in Alabama. That intent, the Court reasoned, had not been effectively negated by Congress' enactment of § 1391(e) in 1962. It is at least as reasonable to assume, though, that the draftsmen of the TVA Act intended to have suits against TVA be governed by national venue policy. In 1933 that policy was for venue to adhere closely to residence. See 28 U.S.C. § 112(a). There is no clear indication that venue for the TVA was to remain geared to residence even after a change in the general federal venue philosophy.¹

The only other case in which a special venue statute was held to be an exception to § 1391(e), Paley v. Wolk, 262 F. Supp. 640 (N.D.Ill.1965), cert. denied, 386 U.S. 963, 87 S.Ct. 1031, 18 L.Ed.2d 112 (1967), concerned the issue of venue for suits to upset decisions of the Patent Board of Appeals, 35 U.S.C. § 145. That section of the patent laws specifically designated the United States District Court for the District of Columbia as the only court in which suit could be brought.

Fehlhaber Pile Co. v. TVA, 81 U.S.App.D.C. 124, 155 F.2d 864 (1946), upon which defendants rely, establishes only what we have already said: that § 831g determines the residence of TVA. The Court in Fehlhaber dismissed the case for improper venue not because § 831g set the venue in the Northern District of Alabama, but because the applicable venue statute, 28 U.S.C. § 112(a), geared venue strictly to defendant's place of residence. The legal residence of TVA remains in the Northern District of Alabama to this day, but due to the enactment of § 1391(e) in 1962, actions of this kind need not be brought only in defendant's place of residence any longer.

Not only does the wording of § 831g imply that it is not to be construed as an exception to § 1391(e), but the legislative history of § 1391(e) itself strongly suggests that Congress did not intend to exempt TVA from the coverage of § 1391(e). The Senate report accompanying H.R. 1960, section 2 of which became § 1391(e) states:

"The committee also approved an amendment to section 2 of the bill providing that the

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